Terms of reference – Council
Membership
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Chairperson
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Mayor
Mahé Drysdale
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Deputy Chairperson
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Members
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Quorum
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Half
of the members present, where the number of members (including vacancies) is even;
and a majority of the members present, where the number of members
(including vacancies) is odd.
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Meeting frequency
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As required
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Role
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To ensure the effective and efficient governance
of the City.
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To enable leadership of the City including
advocacy and facilitation on behalf of the community.
Scope
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Oversee the work of all committees and
subcommittees.
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Exercise all non-delegable and non-delegated
functions and powers of the Council.
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The powers Council is legally prohibited from
delegating include:
○ Power to make a rate.
○ Power to make a bylaw.
○ Power to borrow money, or purchase or dispose of assets, other than
in accordance with the long-term plan.
○ Power to adopt a long-term plan, annual plan, or annual report.
○ Power to appoint a chief executive.
○ Power to adopt policies required to be adopted and consulted on
under the Local Government Act 2002 in association with the long-term plan or
developed for the purpose of the local governance statement.
○ All final decisions required to be made by resolution of the
territorial authority/Council pursuant to relevant legislation (for example:
the approval of the City Plan or City Plan changes as per section 34A Resource
Management Act 1991).
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Council has chosen not to delegate the
following:
○ Power to compulsorily acquire land under the Public Works Act 1981.
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Make those decisions which are required by
legislation to be made by resolution of the local authority.
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Authorise all expenditure not delegated to
officers, Committees or other subordinate decision‑making bodies of
Council.
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Make appointments of members to the council-controlled
organisation Boards of Directors/Trustees and representatives of Council to
external organisations.
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Undertake all statutory duties in regard to
Council-controlled organisations, including reviewing statements of intent and
receiving reporting, with the exception of the Local Government Funding Agency
where such roles are delegated to the Accountability, Performance and Finance
Committee. This also includes Priority One reporting.
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Consider all matters related to Local Water Done
Well.
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Consider any matters referred from any of the
Standing or Special Committees, Joint Committees, Chief Executive or General
Managers.
Procedural matters
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Delegation of Council powers to Council’s
committees and other subordinate decision-making bodies.
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Adoption of Standing Orders.
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Receipt of Joint Committee minutes.
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Approval of Special Orders.
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Employment of Chief Executive.
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Other Delegations of Council’s powers,
duties and responsibilities.
Regulatory matters
Administration, monitoring and
enforcement of all regulatory matters that have not otherwise been delegated or
that are referred to Council for determination (by a committee, subordinate
decision‑making body, Chief Executive or relevant General Manager).
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Extraordinary Council meeting Agenda
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14 October 2024
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7 Business
7.1 Fluoridation
of Tauranga City's water supply
File
Number: A16733585
Author: Peter
Bahrs, Manager: Water Services
Fiona Nalder,
Principal Strategic Advisor
Authoriser: Nic
Johansson, General Manager: Infrastructure
Purpose of the Report
1. To seek direction from
Council as to whether to proceed with fluoridating the city’s water
supply.
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Recommendations
That the Council:
(a) Receives the report
"Fluoridation of Tauranga City's water supply".
(b) Notes the letter from the
Director-General of Health which declines Council’s request for an
extension to the direction requiring fluoridation of the city’s water
supply by 30 November 2024, and highlights that contravening a direction is
an offence with potentially significant penalties.
EITHER
(c) Confirms the previous
decision to not proceed with fluoridation of the water supply until the
completion of the judicial review court process.
OR
(d) (i) Revokes
resolution CO18/24/1(c) Does not proceed with fluoridation of the water
supply until the completion of the judicial review court process, regardless
of whether the extension in (b)(i) is granted; and
(ii) To ensure Council’s
legislative compliance with the direction given by the Director-General of
Health, commences adding fluoride to the city’s water supply from 24
October 2024
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Executive Summary
2. Tauranga City
Council’s (Council’s) water supply does not currently have fluoride
added to it.
3. In November 2021, the
Health (Fluoridation of Drinking Water) Amendment Act (the
Act) was passed. This Act empowered the Director-General of Health to
direct local governments to fluoridate water supplies, i.e. it removed
decision-making regarding the fluoridation of water supplies from local
authorities.
4. Council has been
directed to fluoridate Tauranga’s water supply by 30 November 2024.
Council also has a funding agreement with the Ministry of Health to cover the
capital works cost of transitioning to a fluoridated water supply (up to
$3.43m). The capital work required has been completed, at a total project cost
of $3.4m.
5. On 26 August 2024
Council were provided with a report updating them on the progress made towards
a fluoridated water supply, and providing background information regarding
central government’s decision to legislate for fluoridation, see
Attachment 1.
6. The
recommendations of the report noted that fluoride would begin to be added to Tauranga’s
water supply by mid-September, with full fluoridation of the water supply by
the end of October. These timeframes ensured compliance with the direction from
the Director-General of Health and the conditions of the funding agreement with
the Ministry of Health.
7. The August report also
sought Council approval for further investigation into options to provide a
non-fluoridated water supply for those who choose it. A report back to Council
with details on potential options, costs and feasibility is scheduled for December
2024.
8. At the August meeting
Council decided to put work to fluoridate on-hold and request that the
Director-General of Health grant an extension to the deadline for fluoridation
until the judicial review process currently underway is completed. The process
is considering whether the direction to fluoridate has
considered the New Zealand Bill of Rights Act 1990.
9. Council
also requested that the Director-General of Health confirm that no fines would
be sought in the event that no extension was granted, but that Council still
decided not to fluoridate, see Attachment 2.
10. The
Director-General of Health responded declining Council’s request for an
extension and stating that Council’s non-compliance risked substantial
fines (up to $200,000 plus $10,000 per day), see Attachment 3.
11. Sections 44, 45 and 46 of the Local
Government Act 2002 may also apply, i.e. elected representatives may be
personally liable for costs incurred as a result of unlawful decision making.
12. This report presents Council with
the choice of deciding to:
i. contravene the direction of the
Director-General of Health and keep the city’s water supply
un-fluoridated until the judicial review process is completed; or to
ii. comply with the direction of the
Director-General of Health and ensure the city’s water supply is fully
fluoridated by 30 November 2024.
Background
13. Tauranga City Council’s
(Council’s) water supply does not currently have fluoride added to it.
14. The fluoridation
of water supplies is viewed by some groups, including the Ministry of Health as
a safe, effective and affordable public health measure which improves oral
health. However, other groups and individuals strongly oppose the fluoridation
of water supplies.
15. In November 2021, the Health (Fluoridation of Drinking Water) Amendment Act (the Act) was
passed. This Act empowered the Director-General of Health to direct
local governments to fluoridate water supplies, i.e. it removed decision-making
regarding the fluoridation of water supplies from local authorities.
16. On 27 July 2022, Council
recieved a letter from the Director-General of Health directing Council to
fluoridate the city’s water supply by 31 July 2024. Council recieved an
extension to this deadline for technical reasons, and fluoridation is now due
to be fully operational by 30 November 2024.
17. The Ministry of Health also
established an $11.3m fund in 2022 for capital works associated with
implementing fluoridation of water supplies. Councils who were directed to
fluoridate their water supplies were invited to apply to this fund.
18. Tauranga was successful in their
application for funding, and the capital cost of fluoridating the city’s
water supply is covered up to $3.43m. This will meet the total project cost of
$3.4m (slightly lower than the 2022 estimate of $3.6m).
19. Groups opposing
fluoridation have instigated a legal challenge to the Director-General of
Health’s directions to councils requiring fluoridation of water supplies,
and this legal challenge is currently ongoing. Specifically, this judicial
review process is considering whether the direction to fluoridate has
considered the New Zealand Bill of Rights Act 1990.
20. The New Zealand
judical system has confirmed that, in the interim, the existing directions to
fluoridate continue to be legal and valid unless, or until, revoked by the
Director-General of Health.
21. Council staff
presented to Council a report on 26 August 2024 providing an update on progress
towards fluoridation of the city’s water supply. The report advised that
work was on track to meet the deadline for fluoridation by 30 November 2024. A
full copy of this report is provided as Attachment 1.
22. The
recommendations of the report noted that fluoride would begin to be added to Tauranga’s
water supply by mid-September, with full fluoridation of the water supply by
the end of October. These timeframes ensured compliance with the direction from
the Director-General of Health and the conditions of the funding agreement with
the Ministry of Health.
23. The August report also sought
Council approval for further investigation into options to provide a
non-fluoridated water supply for those who choose it. A report back to Council
with details on potential options, costs and feasibility is scheduled for December
2024.
24. At the 26 August 2024 meeting,
Council made the following resolutions (CO18/24/2).
That the Council:
(a) Receives
the report "Fluoridation of Tauranga City's Water Supply".
(b) Requests
of the Director-General of Health:
(i) A further extension to defer fluoridation of
Tauranga’s water supply until such time as the judicial review court
process on this matter is completed.
(ii) Assurance that Tauranga City Council will not be subject to financial
penalty should it not proceed to fluoridate the water until such time as the
judicial review court process is completed and the consequences
understood.
(c) Does
not proceed with fluoridation of the water supply until the completion of the
judicial review court process, regardless of whether the extension in (b)(i) is
granted.
(d) If
the Director-General of Health does not provide assurance re financial penalty
requested in (b)(ii) above, that the matter be reported back to Council for
further decision.
(e) If following the Judicial review process councils
are required to fluoridate then Tauranga’s water supply will be
fluoridated.
(f) Authorises staff to complete further
investigation of options to provide a non- fluoridated water supply for those
who choose it.
(g) Notes that staff will return to Council with
a report in December 2024 outlining options for a non-fluoridated water supply
for those who choose it. This report will provide information on costs and who
pays those costs, risks and feasibility.
25. A letter was sent to the
Director-General of Health, Dr Diana Sarfati, on 30 August 2024 (see Attachment
2). This letter noted concerns from the community regarding fluoridation and
requested an extension of the deadline of 30 November 2024 to until the completion
of the judicial process. The letter also requested confirmation that, in the
event that an extension was not granted, fines would not be imposed and that
Council would not be required to repay funding received from the Ministry of
Health for the completion of capital works.
26. A response from the
Director-General of Health was received on 20 September 2024 (see Attachment
3). This letter highlighted the legislative authority granted to the
Director-General of Health to direct councils to fluoridate water supplies, and
councils’ requirement to comply. It stated that the legality of this
authority had been confirmed by the High Court on 24 May 2024 and that Council
is expected to meet its compliance date of 30 November.
27. It also mentioned that Council
choosing to contravene the direction given by the Director-General of Health
would be considered an offence, and that potentially significant penalties may
apply.
28. These penalties could be up to
$200,000 plus $10,000 per day. Additionally, under the funding agreement with
the Ministry of Health, Council may be required to repay the $3.4m of funding
received to meet the initial costs of implementing fluoridation. The penalties
plus repayment costs would equate to a substantial sum of unbudgeted
expenditure and are particularly noteworthy given Council’s constrained
financial position.
29. Section 44, 45 and 46 of the Local
Government Act 2002 are also relevant, as they set out potential actions by the
Auditor-General in regards to loss incurred by local authorities, and this is
discussed further in the legal considerations section of this report.
30. On 24 September 2024 Council
provided a media release which expressed Mayor Mahé Drysdale’s
disappointment in the Director-General of Health’s decision to decline an
extension (see Attachment 4).
31. The media release highlighted the
costs Council could face if it continues with its previous decision not to
fluoridate until the judicial review process was completed. It foreshadowed a
potential Council decision to comply with the direction to fluoridate the
city’s water supply by the 30 November 2024 deadline. Its purpose was to
raise awareness so that those in the community who wished to, could install
filtration devices ahead of potential fluoridation.
32. This report presents Council with
the choice of deciding to:
i. contravene the direction of the
Director-General of Health and keep the city’s water supply
un-fluoridated until the judicial review process is completed; or to
ii. comply with the direction of the
Director-General of Health, and ensure the city’s water supply is fully
fluoridated by 30 November 2024.
33. If Council chooses to comply with
the direction of the Director-General of Health, fluoride will begin to be
added to the city’s water supply by 24 October 2024, progressing to fully
fluoridated over a seven-day period. This will achieve fluoridation of the
entire water supply by end of October.
34. Fluoridation of the entire water
supply by end of October is required to ensure that Council achieves
‘Completion of the Works’ as defined in the funding agreement
between Council and the Ministry of Health’s funding agreement. Meeting this
requirement means Council must achieve one month of continuous operation of the
‘Works’ by 30 November 2024.
35. Council’s original
implementation plans were for fluoride to begin to be added to the water supply
from mid-September 2024, allowing for a six-week transition to full
fluoridation. Compressing this process into seven days poses an operational
challenge. Plans are being developed so that if Council chooses fluoridation,
the health and safety of Council staff is maintained, together with the
continued supply of safe, high-quality water.
Statutory Context
36. Under the Health (Fluoridation of
Drinking Water) Amendment Act 2021, local authorities are required to fluoridate
a water supply if directed to do so by the Director-General of Health. Council
has been directed to fluoridate Tauranga city’s water supply by 30
November 2024, and has completed the physical works needed to comply with this
direction.
37. If Council does not comply with the
direction to fluoridate the city’s water supply, there is a risk of
substantial fines (up to $200,000 plus $10,000 per day).
STRATEGIC ALIGNMENT
38. This contributes to the promotion
or achievement of the following strategic community outcome(s):
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Contributes
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We are an inclusive city
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We value, protect and enhance the environment
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We are a well-planned city
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ü
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We can move around our city easily
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We are a city that supports business and education
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39. The delivery of infrastructure,
including water infrastructure, falls under the strategic community outcome
‘We are a well-planned city’. However, the addition of fluoride to
the city’s water supply is a central government direction and does not
form part of Council’s strategic direction as such.
Options Analysis
Option One: Choose to ignore the legal direction and
leave the city’s water supply un-fluoridated.
40. This option would result in Council
choosing not to introduce fluoride to the city’s water supply,
contravening the direction from the Director-General of Health.
41. Key risks: that Council is fined
for non-compliance (up to $200,000 plus $10,000 per day); and additionally,
that Council does not meet the terms of its funding agreement with the Ministry
of Health, so is required to repay any received funding in full and must meet
the unbudgeted capital costs of the project. There is also potential under
sections 44,45 and 46 of the Local Government Act 2002 for elected
representatives to be personally liable for costs incurred as a result of
unlawful decision making.
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Advantages
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Disadvantages
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· Will
be welcomed by groups and individuals in the community who are against
fluoridation.
· Avoids
fluoridation of the water supply (this may be considered an advantage or
disadvantage, dependent on people’s views regarding fluoridation).
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· Risks
fines for non-compliance.
· Means
Council will not meet the terms of its funding agreement with the Ministry of
Health, potentially resulting in unbudgeted expenditure of $3.4m by Council.
· Risks
elected members being personally liable for costs resulting from unlawful
decision making.
· May
damage Council’s relationship with central government.
· Will
not be welcomed by groups and individuals in the community who support
fluoridation.
· Will
result in sunk costs and staff time (as the work to introduce fluoride to the
water supply is well advanced).
· Avoids
fluoridation of the water supply (this may be considered an advantage or
disadvantage, dependent on people’s views regarding fluoridation).
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Option Two: Fluoridate the city’s water supply in
compliance with the legal direction given to Council.
42. This option would see fluoride
begin to be added to the city’s water supply on 24 October, progressing
to fluoridation of the entire water supply over a seven-day period. This option
ensures Council’s legal compliance.
43. Key risk: that interest groups file
an injunction seeking to halt the fluoridation of Tauranga’s water
supply.
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Advantages
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Disadvantages
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· Ensures
legal compliance by the deadline of 30 November 2024.
· Ensures
compliance with the funding agreement between Council and the Ministry of
Health.
· Removes
personal liability risk to elected members.
· Expenditure
and work done to date to prepare for fluoridation is utilised.
· Council
does not risk being fined for non-compliance.
· Council
does not risk being required to repay funding received by the Ministry of
Health.
· Will
be welcomed by groups and individuals in the community who support
fluoridation.
· Delivers
a fluoridated water supply (this may be considered an advantage or
disadvantage, dependent on people’s views regarding fluoridation).
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· Risks
interest groups filing an injunction seeking to halt fluoridation of the
water supply (note Hastings example and outcome, as discussed in the 26
August 2024 report, Attachment 1).
· Will
not be welcomed by groups and individuals in the community who are against
fluoridation.
· May
be an unanticipated change for some residents.
· Delivers
a fluoridated water supply (this may be considered an advantage or
disadvantage, dependent on people’s views regarding fluoridation).
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44. If Council chooses this option, it
will first need to revoke the decision made on 26 August 2024 ((CO18/24/3(c) Does
not proceed with fluoridation of the water supply until the completion of the
judicial review court process, regardless of whether the extension in (b)(i) is
granted).
45. This report does not recommend
either option, instead provides both options in the form of either-or
recommendations for Council decision.
Financial Considerations
46. The total project cost for the
fluoridation of Tauranga’s water supply is estimated to be $3.4m
(slightly lower than the 2022 estimate of $3.6m). This cost will be covered by
funding provided by the Ministry of Health, which has approved funding of up to
$3.43m. Council has received the first milestone
payment from the Ministry of Health ($2,743,866) and payment of the remaining
amount will occur once the terms of the funding agreement have been met.
47. The Ministry of Health funding is
contingent on Council delivering a fluoridated water supply as per the terms of
the funding agreement (discussed earlier in this report). Failure to meet the
terms of the funding agreement may result in Council being required to repay
funding received in full, as a lump sum, to the Ministry of Health.
48. The ongoing operating and
maintenance costs related to fluoridation were estimated in 2022 as $175,500
per year. These costs will be rate funded and increase water rates by an
estimated 0.4%.
Legal Implications / Risks
49. If Council does not comply with the
direction to fluoridate the city’s water supply, it will be considered an
offence (see Attachment 3) and there is a risk of substantial fines (up to
$200,000 plus $10,000 per day).
50. Additionally, if Council does not
meet the terms of its funding agreement with the Ministry of Health, it may be
required to repay any received funding in full and meet the unbudgeted capital
costs of the project.
51. Sections
44, 45 and 46 of the Local Government Act 2002 are also relevant, particularly
s44(1)(c) and s46(1). If a local authority (Council) incurs a loss, such as a
liability that has been incurred unlawfully by a local authority, then the
Auditor General may report on that loss and potentially ‘the loss is
recoverable as a debt due to the Crown from each member of the local authority
jointly and severally’ (s46(1)).
52. Effectively this means that elected
representatives may be personally liable for costs incurred as a result of
unlawful decision making.
TE AO MĀORI APPROACH
53. Not applicable – this report
is regarding a legal requirement, the direction from the Director-General of
Health requiring Council to fluoridate the city’s water supply.
CLIMATE IMPACT
54. Not applicable – this report
is regarding a legal requirement, the direction from the Director-General of
Health requiring Council to fluoridate the city’s water supply.
Consultation / Engagement
55. Council has not completed
consultation regarding the central government direction to fluoridate the water
supply. This is because, as Council is not the decision-maker on this issue,
community feedback should be directed to the Ministry of Health.
56. Information on the timeline for
fluoridation of Tauranga’s water supply is publicly available and can be
found at https://www.tauranga.govt.nz/council/water/drinking-water/whats-in-my-water/fluoride.
Additionally, Council distributed a media release on 24 September 2024 with the
objective of raising awareness, so that those in the community who wished to,
could install filtration devices ahead of potential fluoridation.
Significance
57. The Local Government Act 2002
requires an assessment of the significance of matters, issues, proposals and
decisions in this report against Council’s Significance and Engagement
Policy. Council acknowledges that in some instances a matter, issue,
proposal or decision may have a high degree of importance to individuals,
groups, or agencies affected by the report.
58. In making this assessment,
consideration has been given to the likely impact, and likely consequences for:
(a) the current
and future social, economic, environmental, or cultural well-being of the
district or region
(b) any persons who are likely to be
particularly affected by, or interested in, the matter.
(c) the capacity of the local authority
to perform its role, and the financial and other costs of doing so.
59. In accordance with the
considerations above, criteria and thresholds in the policy, it is considered
that the matter is of high significance.
ENGAGEMENT
60. Taking into consideration the above
assessment, that the matter is of high significance, officers are of the
opinion that no further engagement is required prior to Council making a
decision.
61. Engagement is not recommended or
required, as this is a decision which has already been made by central
government.
Next Steps
62. Depending on the decisions made by
Council, the next steps will be to either:
i. contravene the direction of the
Director-General of Health and keep the city’s water supply
un-fluoridated until the judicial review process is completed; or
ii. comply with the direction of the
Director-General of Health, and aim to have the city’s water supply fully
fluoridated by 30 November 2024.
63. Additionally, work will continue
assessing approaches and options for providing un-fluoridated water supply for
those who want it, and the outcomes of this work will be reported back to
Council in December 2024.
Attachments
1. Attachment
1 - Council Report 26 August 2024 - Fluoridation - A16739794 ⇩ 
2. Attachment
2 - Letter to Director General of Health 30 August 2024 - Fluoridation -
A16739803 ⇩
3. Attachment
3 - Letter to TCC from Director General of Health 20 September 2024 -
Fluoridation - A16739815 ⇩
4. Attachment 4 - Media
Release 24 September 2024 - Fluoridation - A16739848 ⇩
