Tag Archives: Judicial Review

Kaipara rates row : High Court finds “serious and substantial” errors

“If the council had just accepted the money, admitted that the people withholding their rates were wronged, that their case had merit, we could have all moved forward together” – Mangawhai ratepayer Bruce Rogan
(via Checkpoint) Audio | Download: MP3 (3′04″)

### radionz.co.nz 6:01 pm on 16 Sep 2016
New Zealand: Northland
Northland rates rebels win partial victory
By Lois Williams – Northland reporter
The rebel ratepayers of Mangawhai in Northland have won a partial victory in the High Court. The court has found that rates levied from 2011 to 2014 by the Northland Regional Council, via Kaipara District Council rate demands, were unlawful. In an interim decision, Justice Duffy found the Northland Regional Council (NRC) has no power to delegate the assessment of rates or the recovery of arrears to other councils. “The errors I have identified are serious and substantial,” the judge said. “In short, the NRC has failed to exercise its statutory powers properly when determining rates resolutions and it has unlawfully sought to delegate the performance of a number of its functions in relation to rates to the Kaipara District Council.” […] The Mangawhai ratepayers’ chair, Bruce Rogan, said the ruling was very welcome, although the court did not uphold the group’s challenge to penalties and GST imposed by the Kaipara District Council. The council should now agree to negotiate a deal to end the six-year-old Kaipara rates row, Mr Rogan said.
Read more

From Kaipara Concerns (community website):

INTERIM HIGH COURT JUDGMENT RELEASED 16.09.2016
Duffy J has made an interim judgment in respect of the judicial review brought by the MRRA and Bruce and Heather Rogan challenging the lawfulness of rates set by the NRC and the KDC.

She has made the following decisions:

NRC
1. The NRC rates were not set lawfully for the 2011/2012, 2012/2013 and 2013/2014 rating years. [27]
2. The NRC’s delegation to the KDC of the assessment of rates and recovery of rates for the rating years between 2011/2012 and 2015/2016 inclusive was unlawful. Accordingly those rates were not lawfully assessed. [58]
3. The NRC’s delegation to the KDC to add penalties to NRC rates was unlawful. Therefore the penalties imposed on rates in respect of NRC rates was unlawful. [74]
4. The Validation Act only validated the unlawful rates of the KDC. It did not validate the unlawful rates of the NRC. [111]

Result
[129] I make the following declaration: The NRC’s rates for the KDC region have not been lawfully set or assessed for the rating years from 2011/2012 to 2015/2016 inclusive.

Duffy J has not yet decided what order to make in respect of ordering the NRC to refund the unlawful rates charged. She has invited the NRC to make further submissions and especially to examine how this ruling might affect the legality of the rates that it has set for its other constituent areas – Whangarei and the Far North. Those rates might also be unlawful.

She will make her final decision once both parties have made further submissions.
Read more

New Zealand First leader Winston Peters has issued a press release in respect of the Duffy J’s High Court decision:

winston-peters-16-9-16-lessons-for-govt-in-mangawhai-residents-court-win-1

Related Posts and Comments:
31.3.16 Ratepayers achieve for Kaipara District —what Dunedin counterparts…
3.10.15 Kaipara Concerns —ADOTROL* disease [Dunedin mention, again!]
13.2.15 Associate Minister of Local Government: Return democracy to Kaipara
2.2.15 LGNZ run by Mad Rooster Yule, end of story
27.11.14 Auditor-general Lyn Provost #Resign
31.10.14 Whaleoil on “dodgy ratbag local body politicians” —just like ours at DCC
9.9.14 Mangawhai, Kaipara: Latest news + Winston Peter’s speech
19.7.14 Whaleoil / Cameron Slater on ratepayers’ lament
29.5.14 Mangawhai Ratepayers and Residents Assn wins at High Court
31.3.14 Audit services to (paying) local bodies #FAIL ● AuditNZ ● OAG…
29.1.14 Mangawhai, Kaipara —we hear ya!
3.12.13 LGNZ: OAG report on Kaipara
12.11.13 Northland council amalgamation
29.6.13 Audit NZ and OAG clean bill of health —Suspicious!
21.4.13 Councils “in stchook” —finance & policy analyst Larry.N.Mitchell
19.3.12 Local government reform
21.2.12 Kaipara this time

Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.

2 Comments

Filed under Business, Construction, Corruption, Democracy, Design, Economics, Finance, Geography, Infrastructure, Media, Name, New Zealand, OAG, Ombudsman, People, Perversion, Politics, Project management, Property, Public interest, Resource management, Site, Travesty

Ratepayers achieve for Kaipara District —what Dunedin counterparts fail to do for spurious ‘pet projects’

Link + message received.
Thu, 31 Mar 2016 at 8:24 a.m.

█ Message: Maybe time to revisit Jacks Point and Luggate? …

The Mangawhai wastewater scheme cost about $63.3 million. Overall costs were not just financial, the Auditor-General’s report said. “They included a failed council, councillors replaced with commissioners, the departure of a chief executive, a severely damaged relationship between the council and community, an organisation that needed to be rebuilt, and much more.”

### Stuff.co.nz Last updated 17:21, March 30 2016
Dispute settlement sees Auditor General pay nearly $5.4 million to Kaipara District Council
About $5.375 million will be paid to the Kaipara District Council by the Auditor-General’s office now that a dispute between the two has been settled. Mediation of the dispute over audit issues around the controversial and costly Mangawhai wastewater scheme was held by retired High Court judge Rodney Hansen QC, without any admission of liability and for each party to cover their own litigation costs.

Auditor-General Lyn Provost’s scathing inquiry report to Parliament in December 2013 outlined “a woeful saga” surrounding the community wastewater scheme, managed by the then-council between 1996 and 2012. It covered roles played by other agencies, including the Controller and Auditor-General’s office. The inquiry found the council failed to adequately perform its responsibilities to the community in connection with the wastewater scheme. The council itself alleged the Auditor-General did not identify these failings in a timely manner and take appropriate steps to bring them to the council’s attention. It also alleged some of the poor decisions it made could have been averted if the Auditor-General’s office had performed its responsibilities appropriately.

The Auditor-General offered an unreserved apology in the report to the Kaipara district community for the office’s failings in some of its work, but disputed the council’s damages claim. In particular, the Auditor-General considered the council had the responsibility to comply with its statutory obligations, and its failure to do so is not attributable to the Auditor-General’s office. The dispute was settled with neither party admitting liability but the Auditor-General’s office agreeing to pay $5.38 million to Kaipara District Council.

A rates revolt began as costs were included in Mangawhai rates, with some properties connected to the new scheme now paying around $3000 annually in rates. Kaipara District Council commissioner John Robertson said the council was pleased to see a positive outcome from the High Court action it took against the Auditor-General in 2014. “If we hadn’t got an outcome we would be back in court and facing all the risks of whatever judgments go on these sorts of things.”

The Kaipara District Council has two more court battles pending with Mangawhai ratepayers.
Read more

Related Posts and Comments:
3.10.15 Kaipara Concerns —ADOTROL* disease [Dunedin mention, again!]
13.2.15 Associate Minister of Local Government: Return democracy to Kaipara
2.2.15 LGNZ run by Mad Rooster Yule, end of story
27.11.14 Auditor-general Lyn Provost #Resign
31.10.14 Whaleoil on “dodgy ratbag local body politicians” —just like ours at DCC
9.9.14 Mangawhai, Kaipara: Latest news + Winston Peter’s speech
19.7.14 Whaleoil / Cameron Slater on ratepayers’ lament
29.5.14 Mangawhai Ratepayers and Residents Assn wins at High Court
31.3.14 Audit services to (paying) local bodies #FAIL ● AuditNZ ● OAG…
29.1.14 Mangawhai, Kaipara —we hear ya!
3.12.13 LGNZ: OAG report on Kaipara
12.11.13 Northland council amalgamation
29.6.13 Audit NZ and OAG clean bill of health —Suspicious!
21.4.13 Councils “in stchook” —finance & policy analyst Larry.N.Mitchell
19.3.12 Local government reform
21.2.12 Kaipara this time

Posted by Elizabeth Kerr

8 Comments

Filed under Business, Construction, Coolness, Corruption, Democracy, Economics, Events, Geography, Infrastructure, Inspiration, Leading edge, Media, Name, New Zealand, OAG, Ombudsman, People, Pet projects, Politics, Project management, Property, Resource management, Site, Town planning, Travesty

Interim injunction: Walker knows what he's up against

### ODT Online Thu, 7 May 2009
Deal reached on stadium case date
By Allison Rudd

A compromise has been reached over Queenstown property developer Basil Walker’s attempts to get a High Court interim injunction to stop the Otago Regional Council putting ratepayer funding towards the Awatea St stadium within the next few weeks.
Read more

69 Comments

Filed under Economics, Geography, Hot air, Media, Politics, Stadiums

The stadium contract, ODT

Updated post.

### ODT Apr 18, 2009 (page 3, print and digital editions)
Summary: Main provisions of the contract

Project Manager:
Arrow International projects director Lale Ieremia, working with project delivery team.

Contractor’s representative:
Hawkins Construction representative.

Architect:
HOK, Sport and Event and Venue Pty Ltd and Jasmax Ltd.

Quantity surveyor:
Rawlinsons.

Project control group:
Representatives from Hawkins Construction, the Carisbrook Stadium Trust, Mr Ieremia, HOK and Jasmax, Rawlinsons.

NATURE OF CONTRACT
The contractor is required to construct and complete the new Otago stadium for no more than the guaranteed maximum price (GMP) by August 1, 2009. The contract provides for permitted adjustments to the completion date: eg any scope amendments directed by the project manager.

{Continues}

****

### ODT Online Sat, 18 Apr 2009
D-Day looms for Dunedin stadium contract
Dunedin City councillors will decide on Monday whether to vote on signing a construction contract for the city’s new stadium after opponents filed an injunction.
Read more

Posted by Elizabeth Kerr

2 Comments

Filed under Architecture, CST, Design, Economics, Geography, Media, Site, Stadiums

StS judicial review…

No surprises

### ODT Online Wed, 11 Mar 2009
Stop the Stadium may seek judicial review

By David Loughrey

Stop the Stadium has sought legal advice on the possibility of a judicial review of the Otago Regional Council’s decision to help fund the stadium.

President Bev Butler confirmed yesterday to the Otago Daily Times the organisation had instructed specialist public law firm Chen Palmer to look into “whether the Otago Regional Council are acting legally”.

More

6 Comments

Filed under Economics, Geography, Hot air, Media, Name, Politics, Stadiums, STS

Whatever next? Available processes…

Last year and this, speaking with resource management practitioners (planners) at Dunedin and Christchurch, some of whom also act as planning commissioners, it was easily established that the Otago stadium project could not be stopped via the plan change process.

Refer to Dunedin City Council’s Plan Change 8 – Stadium (PC8) and the Notice of Requirement – Harbour Arterial (DIS-2008-3). Link

On reviewing the Council’s applications for PC8 and the NoR, and listening to points of view of potential submitters, the practitioners explained that to participate in the plan change process might alter, most likely for the good, aspects of the plan change documentation and subsequent effects. Fair enough.

This information was made available to several parties within the submission period, including the management committee of Stop the Stadium Inc.

Since the plan change hearings, and following receipt of the commissioners’ decisions for PC8 and the NoR, Stop the Stadium has gone on to lodge appeals with the Environment Court – most properly it seems, not as a ‘delaying tactic’.

Recently, the organisation’s president Bev Butler said an approach had been made to Chen Palmer, the only specialist Public Law firm in New Zealand. There are indications that Stop the Stadium is investigating whether to seek a judicial review at the High Court in relation to council decision-making processes under the Local Government Act. Time will tell. As will finance.

OH DEAR GOD. 9 March 2009. Stop the Stadium has issued a press release to confirm it has withdrawn its appeals to the Environment Court. If intending to seek a judicial review, on who knows what grounds – as yet, or if – then things get interesting. Meantime don’t hold your breath, people.

****

The Environment Court is the primary judicial decision-making body under the RMA, and is at the same level as the District Court. The Environment Court hears appeals from people who disagree with RMA-related decisions made by local councils. The Court can enforce their decision on a person, company or organisation. Link

The Court can be asked to overturn any council decision to do with a plan or resource consent application.

If you disagree with a decision from the Environment Court, you can appeal to the High Court. Any appeal is considered on points-of-law only, rather than a reconsideration of all the matters that were considered by the Environment Court in making its decision.

****

Judicial review is the review by a Judge of the High Court of a decision to determine whether it was according to law, proper procedure, fair and reasonable. Link

Judicial review is not the same as an appeal.

Judicial review is an enquiry into the process by which the decision was made, rather than the merits of the decision itself. The grounds for judicial review include mistakes of law, taking account of irrelevant considerations (or failing to consider relevant matters), or having insufficient information to reach a certain decision.

The judicial review of a decision-making process by a local authority may only be sought if the option of an appeal under the RMA is not available (section 296 RMA).

All judicial reviews heard in the High Court may be appealed to the Court of Appeal. The Court will scrutinise the decision-making process and, if it finds errors, usually send the decision back to the decision-maker for correction.

****

The classic theory of judicial review is that it is an important restraint on the exercise of public power. By this theory, judicial review imposes upon all decision-makers standards that are inherent in a democracy and embraced by the rule of law. The role of the courts to uphold the rule of law and restrain the exercise of power has long been articulated.

Link to Judicial Review – An Update by Charles Chauvel, Partner, Minter Ellison Rudd Watts (Thursday, 04 July 2002).

The principal difficulty in determining whether a decision-maker has acted illegally occurs in those circumstances where the decision-maker has been granted a broad decision-making discretion. However, the courts’ jurisdiction is not ousted merely because the statute confers upon a decision-maker a discretionary power.

The courts maintain a reluctance to interfere in the exercise of a discretion that has been granted to a decision-maker. Even so, the courts maintain their right as the ultimate arbiter of what is lawful.

****

Relationship between Local Government Act and RMA
Visit the Quality Planning website here.

The Local Government Act 2002 (LGA) represented the first major revision of local government law for 28 years. This review was also part of a wider legislative reform, which included the reform of earlier legislation to create the Local Electoral Act 2001, and the Local Government (Rating) Act 2002 (which replaced the Rating Powers Act 1988).

The reforms encourage local authorities to focus on promoting the social, economic, environmental and cultural well-being of their communities, consistent with the principles of sustainable development. Local authorities in consultation with their communities now have greater discretion in the choices they make about what services will be provided, and the manner in which these services will be undertaken. The very prescriptive provisions of the previous Act have been replaced by a general form of empowerment.

The LGA requires local authorities to consult with their local communities and Crown Agencies to determine what public goods and services the community wants provided. This process leads to the development of ‘community outcomes’. These outcomes are then translated into a plan of action referred to as the long-term council community plan (LTCCP).

This is a ten-year strategic planning document, and covers all local authority functions from financial planning and economic development initiatives, to social service provisions such as libraries, housing and community facilities. LTCCPs must be reviewed triennially.

The Resource Management Act (1991) establishes a hierarchy of policy documents from national instruments to regional policy statements, and regional and district plans. This ‘hierarchy’ and requirement to ensure consistency between plans, is to promote sustainable management and ensure integrated management of natural and physical resources at a national, regional and local level.

The following FAQ were prepared by John McSweeney and Sandra Proctor from the Ministry for the Environment; and peer reviewed by Fiona Illingsworth from the Department of Internal Affairs and Jane Johnston from Local Government New Zealand. More

What regard must be given to the decision-making and consultation principles under the LGA when following specified processes in the RMA?

The decision making and consultation principles (sections 76-82) of the LGA are designed to apply only where no requirements are specified in other relevant local government legislation. For example, a decision about notifying a resource consent application would be made under the processes of the Resource Management Act, not under the LGA.

A general principle of law is that specific provisions contained in one Act override the general provisions contained in another Act. The RMA contains specific requirements pertaining to resource consents and decision making, whereas the LGA has general consultative principles that must be applied when consulting with the local community. As there are no specific processes for carrying out consultation under the RMA about how the community should be consulted when preparing a policy statement or plan, local authorities will be required to apply the consultative provisions contained in the LGA.

What are the differences between the decision making processes in the RMA and the LGA?

The RMA has a codified submissions and hearings process, where the Act sets out the process and timeframes to be following, the manner in which hearings must be conducted, and the matters that must be taken into account in making decisions. This quasi judicial process allows for RMA decisions to be challenged on policy grounds to the Environment Court. Any submitter or further submitter can also be a ‘party to proceedings’ in the Environment Court.

RMA decisions can also be challenged in the High Court on points of law and process. For example, decisions relating to whether resource consent applications should, or shouldn’t be notified.

The LGA does not codify the way consultation and decision making is undertaken by local authorities. Each local authority must however ensure that its decision making processes ‘promote compliance’ with sections 76-82. The effect of this is that a local authority’s decision-making processes must:

* involve consideration of all reasonably practical options;
* involve consideration of the views of persons likely to be affected by a decision;
* identify any significant inconsistency between the decision and any policy or plan adopted by a local authority;
* provide opportunities for Maori to contribute to the processes; and
* promote compliance with the principles of consultation, including giving interested persons a reasonable opportunity to present their views.

The LGA contains consultation principles that should be applied when consulting with the public. This is not a mandatory requirement as it is under the RMA.

Members of the public can only challenge LGA decisions in the High Court on the basis that the correct process has not been followed or on a point of law. Legal challenges cannot be made on the merits of the decision. This is the main point of difference between RMA and LGA decisions.

Other sources of information include:
Local Government KNOWHOW guides to the Local Government Act: produced by SOLGM, LGNZ and the Department of Internal Affairs.

****

The High Court, established in 1841 and known as the Supreme Court until 1980, is of pivotal importance in New Zealand’s justice system. It has general jurisdiction and responsibility, under the Judicature Act 1908, for the administration of justice throughout New Zealand. This includes maintaining the consistent application of the rule of law, supervision of other courts and tribunals, and the judicial review of administrative power. It has jurisdiction over both criminal and civil matters, and deals with cases at first instance or on appeal from other courts and certain tribunals.

It comprises the head of the New Zealand Judiciary, the Chief Justice and up to 55 other Judges (which includes the Judges of the Supreme Court and Court of Appeal). In addition, Associate Judges of the High Court (formerly known as Masters of the High Court) supervise the Court’s preliminary processes in most civil proceedings, and have jurisdiction to deal with summary judgement applications, company liquidations, bankruptcy proceedings, and some other types of civil proceedings. The High Court Judges and Associate Judges are based in Auckland, Wellington and Christchurch, but also travel on circuit to Whangarei, Hamilton, Rotorua, Gisborne, New Plymouth, Napier, Wanganui, Palmerston North, Nelson, Blenheim, Greymouth, Timaru, Dunedin and Invercargill. The Court also has registries in Masterton and Tauranga. Court staff in those centres are responsible for supporting the management of cases before the Court and, as Registrars and Sheriffs of the Court, are responsible for exercising certain judicial powers, and enforcing the Court’s judgements and orders. Link

See comment on definitions

7 Comments

Filed under Other, Politics, Stadiums, STS, Town planning