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15 AUGUST 2022
THE SECRET LIFE OF TOPSY - LATEST
An announcement from the office of the Ombudsman:
The Chief Ombudsman has launched an investigation into concerns that councils are undermining local democracy by using ‘workshops’ to discuss issues and make decisions behind closed doors.
Mr Boshier is taking action after becoming concerned about the use of workshops and other informal meetings by local authorities and the way some are excluding the public from meetings in general.
Local authorities are not complying with the Local Government Official Information and Meetings Act (LGOIMA). They are making important decisions outside formal open council meetings without following the correct legal procedure for excluding the public.
The KDC has done this in the case of Topsy the balance tank. The KDC increased the cost of cost of the tank from $2.1 million to $5.112 million without going through the correct legal processes.
The KDC chief executive side-stepped my complaint and suggested I complain to the Ombudsman.
I have followed that suggestion. I will advise of progress.
10 AUGUST 2022
THREE WATERS AND THE BRIBERY OF ELECTED MEMBERS
In the Mangawhai community and around New Zealand it is a widely held view that the “Better Off” package and the “Transition” package to be paid by the government to local authorities to "encourage" them to subscribe to the Three Waters reforms are nothing more than blatant bribes.
In common parlance a bribe is an illegal act involving the exchange of something of value, such as money, with the purpose of influencing the behaviour of public officials.
But is such an action a “bribe” in legal terms? Is it a crime in New Zealand to bribe a public official to achieve a specific outcome?
In other words, if the KDC elected members are pressured into accepting the government bribe in return for voting to adopt the Three Waters proposal, are they committing a crime?
The Crimes Act 1961 confirms that they probably are.
Accepter of the bribe
This is the provision in the Act for the accepter of the bribe who is a public official:
105 Corruption and bribery of official
(1) Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or herself or any other person in respect of any act done or omitted, or to be done or omitted, by him or her in his or her official capacity.
The requirements are:
person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning.
In summary, if the councillors of a local authority vote to accept the Three Waters package offered by the government, and in return agree to support the Three Waters package, they are open to a charge of bribery and corruption under section 105 of the Crimes Act.
Whether there is a link between the payment of the money and the agreement to support the proposal is a matter for the court to decide. However where someone requires a certain decision to be made by public officials and a sum of money is paid by that person to the public officials of the authority that they represent, then it is reasonable to assume that there is a direct linkage between the payment of the money and the making of the required decision.
Take the situation where a developer might offer to donate a sum of money to a local authority if an application for a consent is dealt with “generously”. Is such a blatant bribe any different to the Three Waters situation?
In the Three Waters context, an elected member could trigger the Crimes Act if they agreed to a payment less than the true value of the assets because the lesser payment benefited them in some way.
Giver of the bribe
The Crimes Act provision is simpler:
105 Corruption and bribery of official
(2) Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any official in respect of any act or omission by him or her in his or her official capacity.
The words “every one” are broad enough to include the Crown, Ministers and such bodies as the Department of Internal Affairs because:
Note that the bribe does not have to be for the benefit of the person receiving it. Section 99 provides the following definition:
bribe means any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect
The bribe may be indirect. That covers the situation where it is paid to a third party - the local authority - and not directly to the person being bribed.
Are officers of the Crown, the Prime Minster and the Minister of Local Government, or the chief executive of the DIA liable for corruption and bribery of an official under the Crimes Act?
THREE WATERS AND THE MAHUTA MAFIA
JIM SEPHTON – LIFE AFTER MANGAWHAI CENTRAL
Jim Sephton was the KDC’s General Manager for Infrastructural Services during the PC78 fiasco.
He was responsible for the initial stance of the KDC that there was adequate existing capacity in the MCWWS (Mangawhai wastewater scheme) to accommodate the whole of the Mangawhai Central development (1,000 plus connections) as well as the normal annual connections from other developments.
The assertions of KDC staff in that respect were challenged by submitters from the community during the commissioners hearing of PC78.
The disclosure of the WSP Opus report of November 2019 – kept secret by the KDC – substantiated that challenge. It spelt out the looming crisis in capacity for the treatment plant and the disposal field at Brown Road, even without considering the demands of Mangawhai Central.
However the most telling rebuttal of the KDC’s stance was Jim Sephton’s “own goal”. He provided further information to the commissioners on the capacity of the scheme in which he acknowledged that the treatment plant had only 389 connections left before capacity was reached. *
To remedy this contradiction, Jim Sephton then asserted that there was planned capacity to cope with the demand which would be spelled out in the upcoming Long Term Plan. However, in his judgment in the Environment Court appeal, Judge Smith ruled that the LTP did not provide for the upgrades for capacity increases to accommodate Mangawhai Central.
As a result of Jim Sephton’s assertions on behalf of the KDC the future of Mangawhai Central, beyond the three stores being completed, is now put on hold.
Jim Sephton left the KDC to join the Three Waters project in November 2021 working for Entity A of the Department of Internal Affairs National Transition Unit as Council Interface Manager.
In July 2022 he commenced work with Whangarei District Council as a District Manager. His job description is not known.
* That figure of 389 connections was at December 2020. At December 2021 the figure was acknowledged to be 292. In August 2022 the figure will be a little over 200. Looking ahead, between 80 and 100 connections are taken up each year from normal developments without any consideration of Mangawhai Central.
In addition there are at least 150 existing houses in the scheme’s catchment area that are paying connectable rates, but which should be compelled to connect to the scheme. It is understood the KDC is not requiring connection because of the shortage of capacity in the scheme.
Also, account must be taken of the first connections from Mangawhai Central, namely Bunnings, New World and Caltex. As commercial entities they will take up far more than a single household connection each. However the KDC has not given a figure for the number of equivalent connections that those activities will require.
However, it is quite clear that there is not enough capacity left in the scheme for even the normal developments. There is certainly no capacity for any further developments in Mangawhai Central.
BAYLEYS PRE-SELLING RESIDENTIAL SECTIONS IN MANGAWHAI CENTRAL
Bayleys Warkworth has just announced that it is “pre-selling” 41 lots of residential land in Mangawhai Central. It is the first tranche of lots available for sale.
It is “pre-selling” because titles are not available until 2023.
The sale of lots is targeted towards group builders.
There are a couple of issue that should raise concern. PC78 resolved that no further subdivision of the land can take place until there is an adequate water supply and wastewater facilities are available.
There is no evidence of any move to provide an adequate water supply for the development. As for wastewater, the post above sets out the current situation. There is no further information from the KDC or MCL in respect of proposals and funding for capacity increases. The KDC is undertaking short term capacity measures such as the balance tank to store raw sewage and, perhaps, a temporary disposal alternative on the golf course. However, these will only assist during peak flows.
As things stand at present the availability of title in 2023 seems optimistic.
The advert also states that the lots have “net usable land areas ranging from 441 sqm to 900 sqm”. PC78 decided that the minimum lot area in the development was 500 sqm. Bayleys have advised “net usable land areas” means the area of each lot that is not subject to any restrictions such as flora protection etc.
We await further developments. During the PC78 process the KDC was highly criticised for its lack of transparency, and, with the Environment Court supervising the process, the KDC responded by making reports and latest information available. However, KDC has now reverted to its non-communication stance, keeping the community in the dark about important developments.
05 AUGUST 2022
MAYORAL U-TURN ON THREE WATERS?
I have always suspected that Mayor Smith’s opposition to Three Waters was just a façade adopted for political purposes and to further his ambitions to represent the National Party in the next election.
Certainly at the recent Groundswell meeting in front of the Hub in Mangawhai Village Mayor Smith projected himself as a fierce opponent of the proposed legislation.
However, it was a completely different story at the KDC council briefing of 3 August 2022 when the elected members discussed the various sums of money that the government will pay to the KDC under the Three Waters proposal.
Anyone who watches the meeting would be astonished at the mayor’s change of position on the Three Waters issue.
The meeting can be viewed on: https://www.youtube.com/watch?v=mNZ1wHlRiQA with the relevant part starting at 2:17:55.
Consultation with the community
Councillor del la Varis-Woodcock expressed serious concern that the KDC was spending the $16 million to be paid through the Three Waters “Better Off” package on two libraries. She acknowledged that the projects had been approved and consulted in the recent Long Term Plan. However, she made the point that the community had not been consulted on whether the Three Waters “bribe” should be accepted and spent on those projects.
She went further. She said that at no stage had there been any consultation with the community about Three Waters and whether the council should accept any compensation for the theft or forfeiture of their assets.
Mayor Smith immediately shut her down and stated firmly again and again that the government had not said that the monies to be paid were “compensation”.
He also stated that the community had been consulted on the library projects, and this was simply another source of finance that had "come along". He justified no consultation with the community on the basis that there was no consultation framework in the Three Waters process, and because of the lack of time. However, it was acknowledged that consultation with Maori was part of the process and was proceeding.
Paying off the debt
The meeting also discussed how much would be paid by the Three Waters entities for the assets of the community. KDC staff considered that possibly that all of the existing KDC debt would be paid off by the Three Waters payments, with perhaps $5 million still owing
Mayor Smith (2:39:20) enthused over those figures and stated:
We don’t have the complete picture yet, but it is clear that it is going to be transformative, extraordinarily transformative for the Kaipara council.
Councillor del la Varis-Woodcock immediately raised a point of order and asked the mayor “to refrain from making personal opinionated statements about this reform that are misleading”.
Councillor Curnow chipped with “it is transformative whether you like it or not. We will end up with no debt which is a huge thing”.
Mayor Smith stood by his comments.
However, as the discussion continued it became clear that no one really knew how much was going to be paid by the Three Waters entities and how much of the debt would be repaid.
Mayor Smith also pointed out that the new entities would have the power to rate the community for the debt that it had repaid. However it was unclear and the situation was “utterly unknowable”.
Councillor del la Varis Woodcock agreed and added that the whole discussion was conjecture and unproductive, and that the council should concentrate on consultation with the community over the whole Three Waters issue.
What did we learn?
We learned that both Mayor Smith and Deputy Mayor Curnow are relying on Three Waters to pay off KDC’s massive historic and existing debt for wastewater infrastructure.
For years the KDC leadership has been in denial about the historic wastewater debt, and has covered up its own ineptness in failing to calculate development contributions at the level required to repay the debt.
It is likely that all those who form the leadership team of the KDC are leaving at the next election to avoid the repercussions that will inevitably occur when KDC’s financial time-bomb finally explodes.
The only hope for them to preserve some sort of positive legacy is for Three Waters to come to the rescue and pay off the debt. The likelihood of that happening is remote. As Mayor Smith acknowledged at the meeting, the new entity could rate the community to pay for the debt.
There was a lot of conjecture at the meeting, but at least we have learned two things. First, Mayor Smith and Deputy Mayor Curnow want Three Waters to proceed, and second, they do not want any input from the community on the issue.
04 AUGUST 2022
COUNCILLOR VINCENT RESPONDS TO COUNCILLOR del la VARIS-WOODCOCK’S ATTACK ON THE PC78 PROCESS
Since writing the post below - COUNCILLOR del la VARIS-WOODCOCK SLAMS THE KDC 29 July 2022 - the Mangawhai Focus of 25 July 2022 has a published a letter from Councillor Mark Vincent accusing Councillor del la Varis-Woodcock of making misleading statements in respect of the KDC’s process for accepting PC78.
Councillor Vincent argues that the acceptance of PC78 was “an administrative procedure only” and that “the process was robust”.
Such a view seems at odds with the Local Government Act which states that the elected members are the governing body of a local authority and good governance requires that all such decisions to be made by a full council. It is not open to a local authority to pick and choose when due process can be ignored. (In the post below I point out the irregularities in the process for accepting PC78.)
Looking at the broader picture, the elected members were given three opportunities to accept or adopt PC78.
In which of those three processes did the elected members actually exercise their independent decision-making powers?
1.The first process was the acceptance of PC78. Councillor Vincent maintains that this was an “administrative procedure”, that the Council “was obliged to process it” and that the process was “robust”. In his view it was merely an administrative rubber-stamp.
2.The second PC 78 process was the adoption of the recommendation of the hearing commissioners by a majority of the elected members. The commissioners had expressed doubts about the availability of wastewater capacity but suggested in their recommendation that the issue could be left until subsequent building and subdivisional consents were applied for. At the meeting when the decision was made, the elected members were pressured into accepting the recommendation through a combination of misleading facts about wastewater capacity from the chief executive and her staff, from pressure from the same source in the recommendation report, and from pressure from Mayor Smith and Councillor Wethey. Perhaps the most troubling aspect was the coercive bullying by legal counsel for the KDC who made it clear that acceptance of the commissioners’ recommendation was the only option. The elected members were pressured to rubber-stamp that recommendation. The majority of elected members obliged.
3.The decision to adopt the commissioners’ decision in 2 above was appealed to the Environment Court. By consent and by order of the Court, PC78 was amended substantially because of the lack of a water supply and wastewater capacity. When the amended PC78 came before the council for adoption, Mayor Smith pointed out in a press release:
Mayor Dr Jason Smith says the adoption process was a formality and Councillors were legally required to adopt the plan change.
In other words, this was again another rubber-stamp process.
In short, there were three processes, and all were rubber-stamped by some or a majority of the elected members. At no time did the elected members have the freedom to exercise their role as the governing body (the decision-making body) of the KDC
Councillor Vincent goes on to state in his letter that:
I would like to take the opportunity to alert your readers to impending changes to RMA legislation which have potential to significantly disenfranchise local people from having a say in how their own communities take shape. For as long as I am part of council I will be doing whatever is possible to protect the fragile flower of local democracy.
That sounds like a warning of future incursions into the democratic process and Councillor Vincent’s undertaking to protect that process.
If that is the case how does Councillor Vincent - and perhaps his fellow councillors who endorsed the original PC78 - feel about how “the fragile flower of local democracy” fared in the PC78 process?
For instance, the lack of wastewater capacity and the lack of water supply for Mangawhai Central have now been finally acknowledged by the Court, the KDC and MCL. Do those elected members now accept that they were misled in respect of the wastewater capacity representations made by the KDC leadership and staff?
How do they feel about the fact that the community was obliged to appeal against the decisions of the KDC when those decisions were based on misinformation provided to the commissioners and the Court by the KDC staff?
Have those elected members ever considered that the amendments to the District Plan based on PC78 only came into force on 22 July 2022? Those amendments legally authorise the Mangawhai Central development. And yet the development has been underway for several years. The Bunnings and New World stores and Caltex service station are advertising for staff with a view to opening later this year. How could that development, plus the roading and roundabouts, happen when they were all contrary to the existing plan (Chapter 16 - Estuary Estates) and needed PC78 to be adopted to allow them to proceed? (I give the answer in a post below - 08 JULY 2022 AN IMPORTANT QUESTION ..............HOW DID THE KDC MANAGE TO DEVELOP THE MANGAWHAI CENTRAL SITE WITHOUT PC78 BEING APPROVED?
Finally, the roads and roundabouts will be ready, and the three stores mentioned will probably be functioning by Christmas. But there will be no houses or other buildings. They cannot be built until there is a water supply and adequate wastewater planned and funded through a long term plan. And, the KDC does not have the financial wherewithal to provide such infrastructure.
Those in the KDC leadership who are responsible for this debacle – Mayor Smith, Deputy Mayor Curnow, and chief executive Louise Miller – have advised that they are jumping ship. Others are also leaving.
Other elected members will need to consider whether they were responsible in any way for the disaster that was PC78 and whether they fulfilled the requirements of their roles and their obligations to the community that they serve.
With the election looming they need to consider whether they have the personal courage to offer the community the protection for their democratic rights and interests (“the fragile flower”) and not blindly follow the dictates of the KDC leadership and staff.
30 JULY 2022
THE SECRET LIFE OF TOPSY – PART THREE
This is the final post relating to the secret life of Topsy – the storage tank for raw sewage. (Scroll down for the two earlier posts.)
I sought an explanation from the KDC why the price for Topsy had grown and grown, but there was no record of the elected members agreeing to the increase. An increase from $3.1 million to $5.11 million is substantial 65% jump. To put that figure in context: with, say, typical annual rates of $4,000, that increase alone would swallow all the rates for 502 ratepayers.
The response from the chief executive, through her staff, stated:
Tenders received for the physical works were over the $3.1 million budget. A budget increase of $2.01 million, bringing the total to $5.11 million was approved at the October 2021 Council meeting in the public excluded section. (My emphasis)
If tenders were $2.01 million over budget for a $3.1 million project then that shows remarkable ineptitude on behalf of the KDC chief executive and her staff.
A KDC media release of 15 December 2021 - Balancing demand for Mangawhai wastewater fluffed out the reasons for the cost increase in true “KDC speak”:
The Council had initially budgeted $3.1 million for the balance tank in the Long Term Plan, based on a high-level design. Through the tendering process cost estimates were refined, and upon review of the high-level design there was also an increase to the original scope of works, to enable a fully functioning tank. The cost is now expected to be around $5.1 million.
A $2 million refinement on an original price of $3.1 million is a hefty refinement. However, it is nice to know that the increase was necessary to enable the tank to be “fully functioning”.
But why the secrecy? Why public excluded?
The reality is that it was much worse than that. The KDC failed to include the required resolution in the open session agenda stating that the matter was going to be discussed in public excluded and setting out the statutory reason for the exclusion. In other words there was no trace of any decision having been made or the business case for the increase.
When challenged, the chief executive basically thumbed her nose at me and suggested that I lodge a complaint with the Ombudsman.
The real reason for the extra cost is made clear in the WSP/KDC Master Plan Strategy for the wastewater system. (Listed here under 2022)
The treatment plant does not have the flow capacity to meet the increased loading from new developments and Mangawhai Central. And even if it did, the pipeline to the Browns Road disposal farm does not have the capacity to cope with a greater flow. So, as part of what the report calls “short term flow management”, Topsy has been repurposed. Rather than just dealing with overflows during peak periods and storm events, she has now been enlarged to the tune of $2.01 million to serve as a storage tank for raw sewage to meet the increased demand. That means that raw sewage will be stored in Topsy until it can be fed into the treatment system when capacity is available.
Why was the secrecy necessary? Perhaps the KDC did not want the community to know that the wastewater infrastructure is in a desperate state. It does not have enough capacity to cope with the demand from Mangawhai Central, and the KDC does not have the financial ability to fund the costs of permanent upgrades to the treatment plant and the disposal system.
Perhaps that is why those responsible for the debacle are jumping ship.
29 JULY 2022
COUNCILLOR del la VARIS-WOODCOCK SLAMS THE KDC
The Mangawhai Focus of 11 July 2022 contained a hard hitting indictment of the KDC’s handling of the Plan Change 78 process (PC78) for Mangawhai Central by one of its own councillors.
Councillor Victoria del la Varis-Woodcock attacked the plan change process for what she called an “ill-conceived development”.
She considered that the development proposal was “quite incredible”, given “that this development was unsupported by capacity in the wastewater scheme … and no secure water supply”.
Cr del la Varis-Woodcock was also highly critical of the KDC’s process for accepting the PC78 proposal. It was accepted by only three elected members, Mayor Smith, Deputy Mayor Curnow and Councillor Wethey without any meeting or discussion. They purported to accept the plan change under Covid 19 emergency provisions on 25 March 2020 without any input from the other elected members.
Cr del la Varis-Woodcock’s concerns are spot on. In my PC78 appeal to the Environment Court the irregularities in the KDC’s acceptance process for PC78 was one of my grounds of appeal. I pointed out in that appeal that the emergency provisions for decision-making were designed for “house-keeping matters” only, not for one of the most significant decisions for the future of Mangawhai.
The decision-making was flawed from the start. Mayor Smith had already given his total endorsement to the Mangawhai Central proposal with his promise that "Council will put the wind beneath your wings and make this project fly." (See the post immediately below.)
The KDC had made “the project fly” by approving earthwork consents and a combined resource consent for a supermarket, the Main Street and a subdivision as part of the proposed Mangawhai Central development, but without waiting for the necessary PC78 to be accepted and approved by the KDC.
All of those consents were granted under the old Chapter 16 (Estuary Estates) of the District Plan even though, in the case of the supermarket etc, it breached the provisions of the District Plan.
The KDC and Mangawhai Central Limited achieved this result through their expert consultants persuading the hearing commissioners to override the provisions of the District Plan and to grant consent for this part of the proposed development. KDC staff assured the commissioners that there was an adequate water supply and adequate wastewater infrastructure for the whole development.
So, when PC78 finally came before the KDC elected members, the development that it was supposed to authorise was already well under way. Millions of dollars had already been spent on the proposal. A refusal to accept PC78 at that late stage was simply not feasible for the KDC leadership.
Ostensibly the KDC’s decision to accept PC78 was made under emergency powers because the deadline under the RMA for accepting the plan change was fast approaching. That is correct. However, the KDC had delayed making the decision until the last moment. And it could have included the item in the full council meeting held a little earlier. (The staff report and recommendation that the three elected members relied on was dated only two days after the last full council meeting was held on line.)
In addition, the decision could have been delayed not only under sections 37 and 37A of the RMA but also pursuant to the advice from Local Government New Zealand in respect of delaying decision-making during the Covid 19 epidemic.
There was a further argument that any further delay in accepting PC78 would unreasonably prejudice the progress of the development. Given that the development was already well under way, with the questionable assistance of the KDC, that argument carried no weight
All the evidence available appears to point to the fact that the leadership of the KDC, (namely the mayor, the deputy mayor and the chief executive) deliberately structured the process so that the acceptance of PC78 would be rubber-stamped by the three elected members who supported the development. With the development well under way, based on the endorsement and assurances of the KDC leadership, it could scarcely run the risk of PC78 being rejected by the full governing body of the council.
14 JULY 2022
Andrew Guest, the public persona fronting the Mangawhai Central development, resigned suddenly last year. No reason was given. However his achievement in developing a multi-million project without first securing wastewater and water supply infrastructure may have had something to do with it.
Who can forget the picture of Andrew Guest and Mayor Smith with hands on the same spade, digging the first sod for Mangawhai Central?
And the promise of Mayor Smith to Andrew Guest:
"Council will put the wind beneath your wings and make this project fly, I know it’s going to be a huge success."
The KDC certainly put the wind beneath the wings of the project. There were highly questionable legal processes, a fawning acceptance of nearly all proposals, and a litany of misrepresentations as to infrastructure. Plenty of wind, but sadly no water or wastewater.
PC78 was supposed to be the rubber-stamp necessary for Mangawhai Central to proceed. Instead it proved to be another KDC debacle, with the KDC’s lack of integrity and transparency being publicly exposed, leaving its reputation in tatters.
Andrew Guest left the exit door open. Mayor Smith recently indicated that he will be exiting the same door in the near future. He maintains that he is heading to greener pastures with a career in national politics. However, the noise of skeletons rattling in his cupboard can be heard across Kaipara.
In the meantime Councillor Wethey, who had been deputy mayor when Mangawhai Central was launched, has announced his intention to slip thorough the exit door. Perhaps he saw the writing on the wall.
The exit door also registered the departure of Jim Sephton, the KDC's Infrastructure Manager. He was responsible for many of the misrepresentations in the PC78 process, and was poached by Nanaia Mahuta to help flesh out her Three Waters fantasy. Clearly he has the appropriate qualifications.
Deputy Mayor Curnow is the latest one to announce the intention to use the exit door. She supported Mayor Smith through the PC78 processes and will be remembered for her much criticised performance as the councillor on the PC78 commissioners’ hearing panel.
All gone, leaving all the problems behind. It's a rerun what happened 10 years ago with the EcoCare fiasco. It’s all a bit déjà vu.
MAYOR SMITH AND THE CULTURE OF MISINFORMATION
On 12 May 2022 I posted about Mayor Smith’s spin on the outcome of the PC78 process. He had stated that the outcome was “a good example of the democratic process at work” and “achieved the right balance of enabling development, and preserving the parts of local character and amenity that makes the magical Mangawhai environment so special and unique”.
That was, as we know, all nonsense. The KDC staff - no doubt with the direction of the KDC leadership - continually misrepresented the situation in respect of wastewater capacity and completely rejected the concerns of the community about the effect of the development.
Despite that, Mayor Smith continues to gloss over one of the biggest failures of his term in office and the culture of misinformation that has infested the KDC.
During Council meetings he beats his own drum loud and clear. At the meeting of 25 May 2022 he painted a glossy picture of the KDC under his leadership despite the exposure of its lack of honesty and integrity during the PC78 processes.
It does not look like a council that is falling apart, because it is not. This is a council very much doing its job and is working at communicating what it has done, very fairly to the community which is part of being a trusted council, if you like, that we set out what we are going to do and report back exactly on what we have done and against the benchmarks that we have set.
At the latest council meeting on 29 June 2022 Mayor Smith’s spin machine was at full throttle. The serious allegations of his mismanagement of Mangawhai Central and PC78 and the KDC’s staff’s misrepresentations around the capacity of the wastewater planet were shed like water of a duck’s back. In reflecting on the PC78 process Mayor Smith said:
I would just like to commend the team inside Kaipara District Council for swallowing a whale with the scale of the project that this has been for little Kaipara District Council.
The Mangawhai Central plan change and the works here are on a scale that Kaipara district has never seen in one fell swoop.
So, I congratulate the team for having navigated the operations of council through this extraordinary process.
Of course the reality is that the KDC’s handling of the Mangawhai Central development and PC78 under Mayor Smith has been utterly abysmal. It has been mired by a failure of good governance in many areas, a disregard for due legal process, and a complete lack of integrity and honesty during the PC78 process.
His decision not to seek re-election is timely and appropriate. But he leaves behind a council that is riddled with a malaise that cannot easily be eradicated. There needs to be radical clean-out of all those in the KDC, whether staff or elected, who have forgotten that they are paid by the community that they serve, and that they have fiduciary obligations in law to act in the best interests of that community.
MANGAWHAI CENTRAL AND THE MANIPULATION OF THE TRUTH
With the saga of PC78 almost done and dusted, it is a fascinating exercise to see how the “facts” were manipulated and changed by KDC and Mangawhai Central Limited (MCL) to try and achieve the development that they wanted, and to override the wishes of the Mangawhai community.
I have taken three statements from the lawyers for MCL which show the shift in position as PC78 progressed and the “alternative facts” promoted by KDC and MCL had to, step by step, give way to the truth.
These alternative facts relate to the capacity of the Mangawhai wastewater scheme and its ability to accommodate 1,000 or more connections from the Mangawhai Central development as well as the normal increase of about 90 connections a year.
The information presented by the lawyers for MCL was based on information that they received from MCL and its expert consultants and from KDC and its staff, expert engineers and expert consultants.
To start with, at the PC78 commissioners’ hearing MCL was adamant that there was existing adequate capacity in the Mangawhai scheme to accommodate the whole of the Mangawhai Central development.
Legal submissions from MCL’s lawyers on 20 November 2020
The Council has confirmed that the current Mangawhai wastewater treatment plant can accommodate wastewater from the Proposal. While submitters’ anxiety with respect to wastewater is entirely understandable, we submit that it is simply not an issue here and there is no contrary expert evidence.
Note: There is no contrary expert evidence and the “facts” cannot be disputed.
During the commissioners’ hearing the community presented evidence establishing that there was not sufficient existing capacity for the new development. This was confirmed by the KDC with the revelation that at December 2020 there were only 389 connections left. MCL therefore modified its position to asserting that there was adequate existing and planned and funded additional capacity in place.
Closing legal submissions of MCL legal counsel 03 February 2021
8.2. With respect to wastewater, Mr Sephton’s evidence confirms that: there is immediate capacity at the Mangawhai Community Wastewater Treatment Plant (“CWWTP”) for 389 additional connections; and there is currently planned (including forecasted funding) capacity available to service all connections enabled by PC78. In other words, both planning and forecast funding are in place to deliver the necessary upgrades to the CWWTP to cater for the demands on the CWWTP associated with the full build-out of PC78.
MCL’s lawyers then exerted pressure on the commissioners to accept this new version of the facts:
8.3. While submitters have placed considerable focus on wastewater capacity issues both during and after the November 2020 hearing, all independent expert witnesses with specialisations in engineering, infrastructure and/or wastewater matters agree with the above.
Note: All experts agree with these “facts” and the submitters are wrong.
During my appeal to the Environment Court I presented evidence that not only was there insufficient existing capacity, there was in fact no KDC planned and funded future capacity to accommodate Mangawhai Central, just airy-fairy intentions. This was subsequently confirmed by a joint KDC/WSP report MCWWS Master Plan Strategy, made available in February 2022.
In addition, I submitted that the KDC did not have the financial capacity to fund the necessary additional wastewater capacity to accommodate Mangawhai Central.
As a result MCL did a complete about-turn:
Submissions on appeal to the Environment Court by MCL legal counsel 18 March 2022
1.6. There are three things Mangawhai Central Ltd (“MCL”) agrees with Mr Boonham on:
(a) A full build out of PC78 will, over time, require extension of the existing wastewater treatment and disposal operations.
(b) The direct cost of the extensions will be for the developer(s).
(c) The likely funding methodology will be a development agreement, as provided for in the Local Government Act 2002 (“LGA”).
MCL contradicted its stances in Steps 1 and 2 and finally acknowledged that there would need to be extensions to the wastewater facilities. But there was no mention of the KDC funding those extensions. The “direct cost” would be “for the developer(s)”.
It is unclear what ‘direct cost” means, but the obvious meaning is that the developer (MCL) will actually fund the extensions, as opposed to the KDC funding the extensions through debt and recovering the investment over 30 years through development contributions.
This interpretation is confirmed by (c) which suggests that a development agreement is likely whereby the developer contributes capital to help build new facilities.
It appears, finally, that MCL has accepted that KDC does not have the financial capacity to provide wastewater facilities for the full build-out of Mangawhai Central. If it wants to proceed with the residential part of the development it is going to have to stump up with the money itself for both wastewater services and a water supply.
It has taken three years and an enormous amount of money – much of it provided by ratepayers - to finally blow apart the “alternative facts” and arrive at the truth.
08 JULY 2022
AN IMPORTANT QUESTION ..............
HOW DID THE KDC MANAGE TO DEVELOP THE MANGAWHAI CENTRAL SITE WITHOUT PC78 BEING APPROVED?
The site for the Mangawhai Central development is situated in what is known as Estuary Estates, being Chapter 16 in the KDC Operative District Plan.
Chapter 16 only allows 500 lots on the site. Its policies and rules simply do not permit the site to be developed in the way envisaged by the Mangawhai Central proposal.
Accordingly, Proposed Plan Change 78 (PC78), was lodged with the KDC in December 2019. It proposed substantial changes to Chapter 16 that would enable the new development proposal to proceed.
For that to happen PC78 had to be approved by the KDC and adopted as part of the Operative District Plan. That required a protracted process that included public submissions, a Commissioners’ hearing, appeals to the Environment Court, mediation, and finally orders from the Court.
Jumping ahead two and a half years: At the council meeting of 29 June 2022 the KDC finally approved PC78 in the form ordered by the Environment Court. However, the PC78 changes do not become part of Chapter 16 until they are formally adopted as part of the Operative District Plan. That is some time away.
In other words, PC78 still has no legal status.
How then, you may ask, can the Mangawhai Central site be so well developed if the plan change that legally allows the development to proceed – PC78 - still has no legal status?
After all, the roadways and roundabouts are in place, Bunnings is well on its way and due to open later this year. Other buildings such as the Caltex gas station and the New World supermarket are rising rapidly.
How could this happen? And how could it happen lawfully?
A cunning plan?
It was all part of what appears to be part of a strategy by the KDC to circumvent the requirements of the RMA.
Rather than wait for PC78 to be approved, the KDC decided to take a short-cut to enable the development to proceed immediately.
Quite simply the KDC staff began issuing consents for ground-works on a non–notified basis for the development, and did so under the existing Chapter 16/Estuary Estates part of the of the Operative District Plan on the basis that the proposal would have no more than minor adverse effects on the environment.
The KDC staff closed their eyes to the fact that the proposed activities and works were all part of the Mangawhai Central development proposal which had not yet been given the green light to proceed.
In an act of supreme arrogance the KDC assumed that PC78 would be rubber-stamped in its original form and would, effectively if not legally, retrospectively validate the works being carried out.
However some important proposals like the application for consents for the supermarket, Main Street and a subdivision required a public hearing.
How did the KDC get around that obstacle?
The public notification for the supermarket inviting submissions from the community was seriously deficient. It was only advertised in the Kaipara Lifestyler, and not in the Mangawhai Focus, and just a few days before the Christmas break (17 December 2019) with submissions closing on 5 February 2020. Whether it was deliberately planned like that so that the community was sidelined by festive and holiday activities is not known. However, it was not a good look for a council that maintains that it is transparent and has integrity.
Not surpassingly, only three submissions were received, all opposing the development.
The proposal for the supermarket, Main Street and a subdivision were taken straight from the Mangawhai Central development plans, which of course had no legal status. It was also in fundamental conflict with many of the policies and rules in Chapter 16 (Estuary Estates) of the Operative District Plan.
So, how did the KDC resolve those issues?
The Commissioners’ hearing was swamped with a team of expert consultants from Mangawhai Central Limited. Those expert consultants argued that Chapter 16 of the District Plan was “flawed”. The KDC’s own experts agreed with that conclusion. The Commissioners went with the flow. They also found the Chapter 16 was flawed because:
We have relied on the evidence of those experts, as well as the Council’s expert.
That was "goodbye" to Chapter 16 and the Operative District Plan.
Overriding the ‘flawed” Chapter 16
The Commissioners found justification for overriding Chapter 16 in the broader provisions of the Operative District Plan. They found that the proposal …….
......while contrary to a number of the very specific provisions regarding the development of a specific development, overall it is consistent with the broader strategic provisions seeking to enable urban development and the development of a town centre.
And again, Chapter 16 was not achievable:
60. However, we accept that the proposal is contrary to those provisions that require the specific development proposal as set out in Chapter 16. That development, based on the Applicant’s expert evidence (economic, urban design and planning), will not be built as it is not sustainable.
And at the end of the day, the Commissioners relied a lot on the expert witnesses for Mangawhai Central to justify ignoring Chapter 16:
24 We particularly accept, based on the evidence of Messrs Colegrave, Munro and Tollemache [experts for Mangawhai Central], that the proposal presented to us would be efficient (section 7 (b)) and promote the sustainable management purpose of the RMA (section 5), whereas a development ‘complying’ with the District Plan provisions (Chapter 16) would not.
Resource consents granted by the KDC
The Commissioners also found support for overriding Chapter 16 in the fact that the KDC had already granted seven resource consents for the development which were already under way
These consents, whether implemented or not, form part of the “existing environment”. Like the planning framework, these resource consents are relevant to this proposal; largely relating to the more ‘technical’ aspects of the proposal – including earthworks and infrastructural matters.
The Commissioners chose to overlook that those consents – now all part of the “existing environment” - were all based on the Mangawhai Central development proposal and plans, which at that stage had no legal validity.
Did the Mangawhai Central plans and proposals play any part in the Commissioners' decision?
In case any reader of the decision of the Commissioners might be led to think that the Mangawhai Central development proposal was being consented piecemeal and unlawfully “through the back door”, the Commissioners made the situation clear
15. We note that Private Plan Change 78 – Estuary Estates, which seeks to rezone 130 ha of land contained within the Estuary Estates Structure Plan of the operative District Plan, was publicly notified on the 30 April 2020, with submissions closing on the 28 May 2020. This Plan Change has no legal effect until it is approved and we have not considered it in relation to these resource consents. (Emphasis added.)
In other words, all of the consents granted earlier by the KDC and the consents for the supermarket, Main Street and the subdivision were all granted under the old Chapter 16, even though they did not comply with its policies and rules. Those consents could not have been granted under PC78 because it had no legal status.
To make it very, very clear, the Commissioners did not consider the provisions of PC78 in any way.
It was therefore nothing more than an amazing coincidence that all of the consents that were granted
The Commissioners' decision can be found here: Microsoft Word - 190282 Decision only (kaipara.govt.nz)
Despite all of this not so subtle strategy, we now have a development where the roading and the commercial buildings are well under way, thanks to the Commissioners’ mauling of Chapter 16.
However the expected rubber-stamping of PC78 did not occur. Because of the intervention of the community and the appeals to the Environment Court, PC78 was fundamentally changed so that there can be no further subdivisions or building consents issued unless a water supply is actually established and the necessary wastewater capacity is planned and funded in a long term plan.
So, we have the roads. We will have Bunnings. We will have Caltex and New World. But there can be no more subdivisions into lots. And no more new buildings. Not until the water supply and wastewater infrastructure is available or planned and funded.
Perhaps the final irony is that one of the main purposes of PC78 was to permit the number of lots to be increased from 500 under Chapter 16 to over 1,000, with some as small as 350 m2. However, because of the failure to establish a secure water supply for the development, PC78 was amended so that the minimum lot size is now 500 m2.
01 JULY 2022
PLAN CHANGE 78 - THE FINAL ACT
At the Council meeting of 29 June the KDC elected members finally adopted PC78 with the changes agreed to by the appeal parties and by order of the Environment Court. Under the RMA the Council was obliged to comply with the order of the Court so there was little discussion of the issues arising.
However, Councillor del la Varis Woodcock voiced her concerns about some aspects of the staff report provided to the elected members at the meeting. She referred to two statements in the report. The executive summary on page 1 states
PPC78 was lodged with Council on 3 December 2019 by Mangawhai Central Limited, to amend Chapter 16 in the Operative District Plan to suit their development aspirations. The prescribed RMA process has been followed.
On page 4 the report states at e. that there was “a thorough and robust public participatory process”.
The Councillor took exception to the comments. She had this to say:
My statement is to correct some facts that appear misleadingly in the report. And I do this because I think that it is important for the council to learn from its mistakes.
And it is important for me to uphold the principles of democracy which is open, fair and transparent.
So, I will draw attention to one of the misleading statements in the report that says “this was a robust public participatory process”. It was not “a robust public participatory process” because on 25 March 2020 only three elected members of this council chose to accept Private Plan Change 78 delegated under the auspices of a covid emergency situation within mere days of when our council met legitimately online.
The RMA training that I have had emphasises to the point of complete first principle basis that any undertaking under the RMA must uphold natural justice, the principles of natural justice. That is, to be heard. Also principles of retaining an open mind, and proper process
So, I would like to underscore that proper process was not upheld in this process because our full council should have had, as elected representatives of this district, opportunity to decide – not just three people, three members – but the full council
If we had that opportunity, and the public would have been in the gallery, at that stage it is clear from the appeal and Judge Smith’s decision and the changes from the first proposal to the Judge’s outcome and decision, how much was it ill-conceived in that first iteration (is the word that I would use).
These comments are absolutely spot on. This important decision to accept PC78 was made by Mayor Smith, Deputy Mayor Curnow and Councillor Wethey by simply signing the recommendation of KDC staff. There was no discussion or consideration of issues, and all the other elected members were excluded from the decision-making. Of course the signing was done in private so the community was denied any part in the process.
KDC justified this blatant breach of due process because emergency powers had been granted to the three signatories and because there was a statutory deadline for making the decision. However, the emergency powers were strictly for housekeeping matters only. As for the deadline, there were special Covid provisions for extending deadlines. A full council meeting had been held earlier on line and there was no reason why one could not have been held for this highly significant decision.
This is one of the many governance failures of the KDC chief executive and her staff and the mayor and the deputy mayor in relation to the PC78 fiasco.
Councillor del la Varis Woodcock linked this latest failure of governance to historic ones:
That is something that this Council must learn and take on board. That it made an error because this Council has been part of a woeful saga from the original Mangawhai wastewater scheme’s poor planning.
Councillor del la Varis Woodcock also attacked the KDC’s flawed assertions in respect of infrastructure for what she termed “the biggest single development in Mangawhai and in Kaipara”. She said:
It was evidently under-supported by capacity in the wastewater scheme and by budgeting and allowance for enough development contributions. But also the original form of this proposed plan change, having sections at 350 m2 which would not have accommodated a water tank and without any secure water supply, was quite incredible.
She was also concerned with the failure of the KDC to acknowledge that most of the submitters from the community opposed the development proposals
I also wish for our council to be a trusted council, and to be a trusted council you must spell out clearly the truth, and the truth is that in the report it says that there were 208 submissions and a further nine. It did not say that there were 208 submissions against.
In other words KDC staff were covering up the fact that the community as a whole was against many aspects of the proposal.
She concluded by surmising what might have been if the KDC had followed due process:
Had we on 25 March 2020 had the opportunity, as a full council, we may have averted the huge effort that our community had to go through - individuals, private individuals - giving up their time and their money to appeal to the court.
There was no comment from Mayor Smith or any other councillors.
THE SECRET LIFE OF TOPSY continued ….
[This is a continuation of the post THE SECRET LIFE OF TOPSY below.]
I made my LGOIMA request on 23 May 2022.
The response from the chief executive’s staff gave an explanation for the increase in cost
Tenders received for the physical works were over the $3.1 million budget. A budget increase of $2.01 million, bringing the total to $5.11 million was approved at the October 2021 Council meeting in the public excluded section.
A 65 % “budget increase” for Topsy in such a short space of time is concerning in itself.
The fact that the chief executive “fudged” the reason for the increase as a “budget increase” and failed to reveal the real reason behind the massive, unexplained increase is even more concerning.
The decision to approve the expenditure in secret moves the process from concerning to alarming.
But it is even worse than that.
On 16 June 2022 I sought an explanation from the chief executive as to why the Council had failed to comply with the requirements of LGOIMA in excluding the public when the Topsy budget increase was approved. The Council deliberately hid the fact that the increased cost of Topsy was being approved in secret.
I also sought the following information:
The community would appreciate an honest appraisal of this process and a full explanation of why the increase in price was so heavily disguised.
The community would also like to know the LGOIMA ground for the secrecy.
It would also be helpful if the community could be told how the increase in price is to be funded.
I have not received a response.
24 MAY 2022
PC78 article in Mangawhai Focus edition of 23 May 2022: Clive Boonham wins protection for community against another ‘EcoCare disaster’
For those who cannot access a copy of the Focus it is available on line here.
21 MAY 2022
THE SECRET LIFE OF TOPSY
Topsy began life in September 2020. Since then she has grown and grown just like ………the proverbial Topsy. (Who was Topsy? See the end of the post.)
Topsy is the name given to the balance tank that the KDC originally mooted to prevent overflows of raw sewage because of the limited capacity of the MCWWS treatment plant.
Topsy was born in a KDC staff report for the council meeting of 30 September 2020. The flow of waste into the MCWWS treatment plant is limited by the reticulation pumps to 70 litres of waste per second (70 l/s). Likewise the treatment plant itself can only cope with the same quantity of flow. The 12 km pipeline from the treatment plant to the Browns Road disposal farm also had the same 70 l/s limitation, as do its pumps.
However, during peak holiday periods and rainstorms the actual flow can exceed 100 l/s with resulting overflows of raw sewage. Topsy’s role was to serve as storage/detention/holding tank, to store the raw sewage during those occasional events – to prevent raw sewage spills - so that the retained sewage could be fed into the treatment plant once capacity became available.
Topsy was to be the same size as the 2 bioreactor tanks in the treatment plant so that she could be repurposed as an additional bioreactor tank when the system was upgraded in a few years.
The total budget for Topsy was $2.1 million.
Topsy’s growth was rapid. Just a few months later a staff report to the council briefing of 03 March 2021 recommended an increase in size for safety reasons and to increase the overall efficiency of the scheme. The revised budget estimate was $2.869 million.
It appears that councillors baulked at Topsy’s rapid growth. At the council meeting of 28 April 2021 the elected members delegated the chief executive to award the contract for the original $2.1 million.
The Consultation Document for the draft 2021/2031 LTP referred to the balance tank but did not refer to its cost. However the LTP itself (commencing on 1 July 2021) stated on page 24 that the council had approved a new budget of $3.1. Topsy was growing fast, but in secret. I have been unable to find any record of the councillors agreeing to this figure, unless it was included in the LTP deliberations.
Topsy grows in secret
Then it all went quiet. Topsy was not heard of again until the mediation process for PC78 in late 2021 and early 2022. It was revealed that the cost of Topsy had ballooned to $5.112 million.
There was no explanation of this. I could not find any resolution to that effect in any of the minutes of council meetings. I raised the issue of Topsy’s increase in cost from $2.1 million to $5.1 million with the KDC during mediation. The response explained everything. The increase was approved in a public excluded session. Topsy’s growth had suddenly becomes one of KDC’s many secrets.
On 11 May 2022, in a Latest News release on its website, the KDC explained why Topsy had grown so much. It also included a photo showing Topsy being built.
The news release is reproduced in the latest edition of the Mangawhai Focus
Topsy the tank under construction
The news release states: "Building the balance tank is part of a draft long term strategy to increase the plant capacity."
That is not true. The balance tank has become a temporary and very expensive short-term fix to store waste sewage because the treatment plant and the pipeline to the Browns Road disposal farm do not have the capacity to cope with the current and future flows. Originally designed to remedy occasional capacity issues, Topsy has been repurposed and “grown” to provide extra storage capacity as the MCWWS as a whole will not be able to cope with the demand from developments including Mangawahi Central. With less than 298 connections left in the treatment plant there is a capacity crisis.
The WSP/KDC Master Plan Strategy, released in February 2022 presents the hard facts and makes it clear that Topsy is part of the “short term flow management”. It is a temporary measure until the treatment plant’s capacity can be expanded once there is a new, permanent diposal solution.
It has always been a mantra of the KDC that the state-of-the-art treatment plant is "modular" and can be upgraded by adding another bioreactor tank at any time to meet capacity demands. That is not true. Capacity is limited by the 70 l/s capacity of the reticulation system that feeds into the plant. It is also limited by the 70 l/s pipeline and pumps which take the effluent to Browns Road.
One of the boasted advantages of the balance tank was that it was to be of the same size as the 2 bioreactor tanks in the treatment plans so that it could be re-purposed as the third one when the treatment plant is expanded. With the secret growth of Topsy into a much larger tank, that advantage appears to have disappeared.
The Master Plan Strategy anticipates that it will be 6 to 8 years before a permanent disposal option is operational and the plant and reticulation can be upgraded. WSP anticipates that another Topsy may be requires to store the excess capacity as demand grows.
The funding of Topsy has been kept well away from the prying eyes of the ratepayers. There has been no public explanation of how Topsy has gone from $2.1 to $5.112 million.
An explanation of how it is it to be funded is included in the latest news item in the usual, meaningless “KDC-speak”:
The cost to construct the $5.112 million balance tank is funded by growth, through development contributions, and partly by current users, though loan and depreciation reserves.
The allocation to development contributions is the KDC’s glib answer to all capital costs, although KDC has failed dismally to repay historic capital costs by failing to charge development contributions properly. What the KDC does not explain is that development contributions repay debt over 30 years. In the interim 50 per cent of the interest is capitalised and added to the debt, and 50 per cent is paid by ratepayers across the district through the general rate.
There are no details of the percentage of the costs that are allocated to the different groups.
The allocation to current users is highly questionable when they have already paid their capital contributions to the scheme. If they are to pay more, how is that to be charged?
Using depreciation reserves is simply robbing Peter to pay Paul to fund Topsy.
Topsy is a desperate and very costly attempt to cope with the impending crisis in wastewater capacity brought about by the failure of KDC staff and leadership to acknowledge the glaring truth about the limited capacity of the MCWWS, and the KDC’s failure to plan ahead to meet the wastewater requirements of developments.
Topsy is a new addition to the topsy-turvy world of the KDC.
“To grow like Topsy” means to grow very quickly. The phrase alludes to the little African-American slave girl in Harriet Beecher Stowe’s Uncle Tom’s Cabin (1851), who when asked where she came from, replied:
“I ’spect I growed. Don’t think nobody never made me.”
The various reports on the MCWWS can all be viewed here: https://www.kaipara.govt.nz/services/water-services/wastewater/mangawhai-wastewater
Has the KDC obtained resource consents and a building consent for Topsy?
The stench from 900 m3 of stored, static raw sewage is going to be an issue. Will the proposed microscrubber alleviate the smell nuisance?
Why was the increase in size of Topsy and the huge increase in price dealt with in public excluded?
KDC’s Standing Orders sets out the requirements for public excluded items in an Agenda:
18.3 Public excluded items
The chief executive must place in the public-excluded section of the agenda any items that he or she reasonably expects the meeting to consider with the public excluded. The public excluded section of the agenda must indicate the subject matter of the item and the reason the public are excluded.
s.46A (8) LGOIMA.
The KDC can only exclude the public on the grounds set out in section 48 of the LGOIMA. It is hard to envisage that details of the balance tank could be excluded lawfully on any of the statutory grounds.
The KDC must also follow the procedure set out in that section. The resolution to move the item to public excluded, with the names of mover and seconder, must be recorded in the Minutes, along with the relevant statutory grounds.
I will obtain the relevant details through a LGOIMA request and report back.
15 MAY 2022
KDC AND MCL PAY CLIVE BOONHAM’S APPEAL COSTS
I won my appeal in the Environment Court.
Judge Smith agreed with my submissions:
 There needs to be sufficient certainty in relation to wastewater being available for a development when that subdivision consent and development consent are granted
Allowing KDC staff to decide what “planned” capacity meant did not create that certainty. Judge Smith therefore endorsed my suggestion that planning and funding for new wastewater infrastructure had to be identified in a long term plan. That meant that decisions on planning and funding would be made by the elected members following consultation with the community in accordance with the Local Government Act 2002.
Finally, KDC would be obliged to comply with the law.
Normally costs are awarded to the victorious party in a court hearing. Not so in the Environment Court when it hears plan changes. Judge Smith indicated this in his decision:
This does not appear to be an appropriate issue for the assessment of costs. Any party wishing to make an application for costs is to do so within 20 working days. Any reply is to be filed within a further 10 working days, and final reply five working days after that. Such application is not encouraged.
However, costs can be awarded if the court is satisfied that there are exceptional circumstances. That usually applies to compensate a party for costs incurred because of the unnecessary delay of another party, such as where arguments of little merit are pursued.
Although there were no legal precedents, I filed an application for costs on the basis that the misrepresentations as to the capacity of the MCWWS had made it necessary for members of the community to file appeals with the court to ensure that justice was done.
I filed a 30 page application setting out the misrepresentations of the KDC and MCL.
Immediately the KDC contacted me with an offer from KDC and MCL to pay my costs. I declined to settle on a confidential basis. I have campaigned against the KDC’s lack of transparency and its secret deals. I could scarcely become a party to such a deal. The final offer was to pay my costs of $600* “on a completely open basis”.
The reasons given by KDC’s lawyer for this hasty and eager settlement showed remarkable sensitivity:
“To save the Court time, and avoid the Council and MCL incurring further costs in this matter.”
It is a pity that those who run the KDC did not display the same sensitivity when incurring huge costs for the KDC, and ultimately its ratepayers, in its abysmal mismanagement of the PC78 fiasco.
I accepted the offer, the application to the court for costs was withdrawn, and the costs have been paid. Half by KDC and half by MCL.
I asked if the KDC could add my Application for Costs to all the other PC78 documents on the KDC website. Private Plan Change 78 - Mangawhai Central, Kaipara District Council
KDC’s lawyer responded:
My instructions from the Council are that it does not agree to putting your application for costs on its website as the matters raised in your application for costs are not agreed between the parties.
It seems that the KDC might have been very reluctant to have its dirty washing publicly displayed in the Environment Court and on its own website.
That is understandable. It has an awful lot to hide, and to be ashamed of.
* Because I acted for myself and did not employ a practising lawyer or a professional consultant I could only claim the $600 filing fee for the appeal.
12 MAY 2022
MAYOR SMITH’S SPIN ON PC78 APPEALS OUTCOME
KDC’s Mayor Smith is again churning out the spin from his smoke and mirrors machine.
Always willing to put a gloss on KDC’s failures and stuff-ups, Mayor Smith has again excelled himself by trying to turn KDC’s appalling performance and crushing defeat in the PC78 processes into some sort of victory for democracy.
In a latest news post on the KDC website ……
Mayor, Dr Jason Smith, says this outcome is a good example of the democratic process at work.
Really? The democratic process at work?
The ‘good outcome” is not an example of the democratic process at work. In fact PC78 highlighted the flawed governance of a dictatorial council side-stepping its statutory decision-making obligations and its community consultation obligations under the Local Government Act 2002.
Virtually every step in the PC78 process was marred by a failure of the KDC to comply with due legal process. In addition there were egregious episodes of conflict of interest, predetermination, and the pressuring and bullying of the elected members.
The Mangawhai Central development involved some of the most significant decisions to face the KDC, yet the community and the elected members were completely sidelined, with all decisions being made by those who run the KDC and the KDC staff.
In light of the almost total endorsement of the development by the KDC, the Hearing Commissioners – including the deputy mayor - completely ignored the 200 odd submissions from the community and accepted virtually every aspect of the proposed development.
Mayor Smith pours on more gloss:
“The agreement has achieved the right balance of enabling development, and preserving the parts of local character and amenity that makes the magical Mangawhai environment so special and unique,” says Mayor Smith.
No thanks to Mayor Smith. If he and his leadership team and the KDC staff had had their way the development would not have had the basic infrastructure of water and wastewater to enable development, and the magical environment of Mangawhai would have been destroyed.
He goes on:
“I’d like to thank the parties for working constructively with the Council to reach this excellent outcome.”
There was nothing constructive or cooperative about the process. The “excellent outcome” was achieved solely because of the determined efforts of the community, and despite the complete intransigence of the KDC. The end result was a victory for the people of the district over the tyranny of the KDC. It was a vindication for every submitter, every appellant, and every section 274 party who fought hard to prevent the KDC from destroying our township.
IT IS EVEN WORSE THAN THAT
The outcome of the PC78 also exposed a sinister underbelly of the KDC that should concern every resident of the district, and way beyond that.
During the PC78 process the KDC staff made assertions about the capacity of the Mangawhai wastewater scheme (MCWWS). They made those assertions to the Hearing Commissioners. They made those assertions knowing that they were false. They made them with the intention of misleading the Commissioners.
Initially the KDC staff asserted that the MCWWS had the existing capacity to accommodate the 1,000 plus connections of the Mangawhai Central development. They also asserted that there were already 500 connections in the MCWWS allocated for Estuary Estates, so only a further 500 connections were needed.
Both of those assertions were incorrect. The KDC staff knew that they were incorrect.
My chance discovery and disclosure of the November 2019 WSP report (kept secret by the KDC for a year) was a key factor in establishing the truth. I made it available to the Commissioners.
The WSP report warned of an impending shortage of capacity based on 70 to 100 connections a year, for normal growth. It did not consider the additional demand from Mangawhai Central.
The other revelation was what you might call an “own goal” by the KDC General Manger of infrastructure. He revealed to the Commissioners that as at December 2020 there were only 389 connections left in the MCWWS treatment plant.
These two disclosures confirmed that the KDC staff’s assertions of adequate existing capacity were a fabrication.
Prompted by some very concerned Commissioners, the KDC staff then made a whole raft of new assertions about there being adequate planned capacity and funding to accommodate the demands of Mangawhai Central. These assertions were made to the Hearing Commissioners for PC78 and relied on by the Commissioners in making their recommendation to adopt PC78.
The 2021/2031 long term plan, which came into effect on 1 July 2021, failed to provide the promised planning and funding for adequate infrastructure to meet the future wastewater loading.
And, yet again, KDC scored an own goal through the release in February this year (2022) of its Master Plan Strategy for the MCWWS. That Strategy report makes it very clear that there is a crisis in wastewater capacity even for normal growth, without factoring in the demand from Mangawhai Central.
The Strategy report also confirms that planning and funding for capacity upgrades will not be considered until all options for capacity upgrades have been considered at the end of 2022. It will then take 6 to 8 years for those upgrades to become operational.
For good measure, in February 2022 another KDC General Manager stated in her evidence to the Court of Appeal that at December 2021 the treatment plant only had 298 connections available (down from 389 a year earlier).
These disclosure confirm that the KDC staff misrepresented the existing capacity of the MCWWS and, subsequently, the existence of planning and funding for future capacity to accommodate Mangwhai Central. Again, the staff made the representations knowing they were untrue.
Such blatant misrepresentations are as serious as you can get for a local authority. They evidence a deep malaise at the heart of the organisation and a concerning absence of transparency and integrity.
This is not limited to the staff members who made the false assertions. The chief executive employs the staff and is ultimately responsible for all of their actions.
But it goes further. I know that most of the elected members played no part in this deception. However, there must be serious concern about the nature of the leadership of the KDC and speculation as to who in the KDC actually authorised the staff to make the baseless representations as to capacity.
The question now arises: Should those responsible for this latest debacle be allowed to continue in their roles at the KDC?
MASTER PLAN STRATEGY
For those who are interested in the detail, here are some more details of this Masterplan Strategy.
The Master Plan Strategy (January 2022) is the work of WSP, with input from the KDC. It paints a dismal picture of the capacity of the MCWWS.
The annual demand for connections is about 90 a year for normal development. The Strategy does not consider the extra demand from Mangawhai Central. The Strategy states on page 4
The 100 connections growth rate may be too rapid to allow assets to be consented and procured, constructed and commissioned before capacity limits are reached.
With Mangawhai Central now being approved, the capacity crisis becomes even more acute
In February 2002 another KDC General Manager stated in her evidence to the Court of Appeal that at December 2021 the treatment plant only had 298 connections available (down from 389 a year earlier).
This was another confirmation that there is insufficient existing capacity to accommodate Mangawhai Central.
Planned and funded future capacity
To put it very bluntly, the Masterplan Strategy makes it absolutely clear that the KDC has little idea of the issues facing the MCWWS or its capacity. The Strategy reveals that WSP is preparing a wastewater network model (page 5);
These models will inform what additional capacity is needed, where and when across the system. This will enable options and costs to be developed with upgrades to the network occurring when needed in the future. All network strategy plans will be incorporated in the District Plan due end of 2022.
This will include proposals for capacity upgrades to the reticulation system (pipes from lots to the plant), the treatment plant, and the disposal field at the Browns Road farm. Only then will the planning process start.
The problem is that such planning takes time. For instance, in respect of a new, desperately needed, disposal system on page 7:
All disposal routes will require community engagement, options assessment and environmental assessment and resource consenting, so are expected to take 6-8 years before [they] can be operational.
Short term fixes
The Strategy also includes two “short term flow measures”. These are temporary fixes to provide interim extra capacity.
The balance tank, designed to prevent overflows of raw sewage during peak periods and excessive rainfall, will now be increased in size to serve as a holding rank for raw sewage. The sewage will be held in the tank until there is enough spare capacity for it to enter the treatment plant.
The disposal fields at the Browns Road farm present real issues. They are approaching their maximum saturation level. Not only that, the 11 km pipeline from the treatment plant to the farm is not large enough to cope with any increased flow from the treatment plant. A very expensive new pipeline would have to be laid, but is not financially viable given the limited disposal capacity remaining at the farm.
The temporary fix for disposal is by disposing to the golf course. This has been mooted before and rejected. However, given the desperate situation with capacity, it appears to be the only option available. It has its problems. It is also costly, and is only a temporary solution. (It will take, supposedly, 450 connections.) It was costed at a ridiculously low $1.5 million in the long term plan, but the reality is that it would cost many, many times more than that.
Even if the golf course does go ahead it will be several years before it is operational.
Cost of long term capacity upgrades
This is an issue the KDC refuses to face up to. It set aside $10 million in the 2021/2031 LTP for capacity upgrades for the next 10 years. The temporary measures - increase in the size of the balance tank and the golf course - will absorb all of that $10 million and possibly more.
There are three major parts to the scheme.
There needs to be upgrades and extensions to the reticulation system (the pipes for lots to the treatment plant).
There is the treatment plant. The LTP states: “$20.4m (inflated cost) is included in the current financial forecasts for 2021-2031 for growth (just for the treatment plant).” It is unclear what that means.
The disposal system is the major concern. The Browns Road farm is nearing capacity and there is an urgent need to plan for a permanent alternative.
The Masterplan Strategy (page 7) considers the options, including buying a new farm, disposal to the harbour, and a coastal outfall. The cost of those was considered in the November 2019 WSP report and was respectively $38 million, $26 million and $47 million.
We can safely assume that the long term cost of increasing the capacity of all parts of the MCWWS will be $50 million plus.
Who pays for that?
Mayor Smith will tell you that it is the developers, or that it is paid through development contributions. That is his spin machine at work again.
The reality is very different. But more of that in a later post.
29 APRIL 2022
A MUCH SLOWER BUILD-OUT OF MANGAWHAI CENTRAL
Some of the commercial buildings in Mangawhai Central are going up at a very fast rate. Presumably that is because MCL is keen to get the buildings finished so that leases can be finalised, and then the buildings can be sold to third parties with solid leases in place. As has happened with the Bunnings property. (See the post below.)
It enables MCL and its investors to recover some of the capital that they have invested in the development.
However, it appears that the residential part of the development will move at a much slower pace than previously expected.
Only last year in the report on Mangawhai Balance Tank; Risk of Increasing Flow at Thelma Rd (Outfall) Pump Station (14 September 2021) on page 5, WSP, the KDC’s expert consultant on the MCWWS, stated:
The Mangawhai Central Development, that has been through a plan change process to intensify the density of housing, is expected to bring up to 1,000 connections, and developers have informed KDC that they anticipate the first phases to occur soon. This may result in 200 connections per year.
Since then the situation has changed markedly. KDC’s General Manager, Sustainable Growth and Investment and the acting General Manager, Infrastructure Services, Sue Davidson, stated in her written evidence to the Environment Court on 11 February 2022
4.32 In terms of MCL’s intentions for the PC78 site, Mr Tollemache [expert consultant for MCL] has indicated MCL has advised him that its estimated rate of connections are 55 connections in Year 1, 60 connections in Year 2 and 70 connections in Year 3.23 Beyond that MCL has provided no estimate of its likely rate of connections, although I note that at a rate of 50-70 connections per year it would take 15-20 years for the site to reach its estimated capacity of 1000 residential units, allowing time for planned upgrades to the MCWWS to take place. (My emphasis)
It appears from this comment that the residential development has been deliberately slowed down because it has now been established beyond any doubt in the PC78 appeal process that there is not sufficient capacity in the MCWWS to cope with a faster-build-out. (As for “planned upgrades”, that is another matter where that I will explore in a later post.)
This is a complete about-face for the KDC staff and KDC consultants who pressured the Commissioners to approve PC78 on the basis that there was enough existing capacity in the MCWWS to accommodate the whole of the Mangawhai Central development.
With only 298 connections left in the treatment plant (as at December 2021) before it reaches capacity (confirmed by Ms Davidson in the same document), there is going to be a lolly-scramble to secure a connection.
About 90 connections are taken up each year through normal development, and that may be outdated because of the number of developments now under way.
The commercial buildings under construction on the Mangawhai Central site were all consented under the existing Chapter 16 (before the PC78 amendments) on the assurances of KDC staff and consultants that that there was adequate capacity in the MCWWS. Those buildings will of course take up quite a few of the connections that are left. A “connection” is calculated as the average amount of wastewater from a residential unit. It is unclear how many residential connections a Bunnings building, for example, equates to.
There are also over 500 properties in the MCWWS catchment area that pay “connectable” rates, which could apply for connections at any time. In fact they should be compelled to connect given that the whole thrust of EcoCare was to get rid of private schemes that polluted the estuary.
No wonder Mayor Smith has given an undertaking in respect of the 500 connectable properties that they will not be compelled to connect. There are not enough connections available for all of them to connect. And if some did connect, there would be no connections left for Mangawhai Central or other developments.
MANGAWHAI CENTRAL LIMITED IS SELLING THE BUNNINGS STORE
The Bunnings Store at Mangawhai Central is being built by Mangawhai Central Limited (MCL).
It has already leased the building (when completed) and the land it occupies to Bunnings. The building is due to be completed later this year.
Having secured a good lease from an excellent tenant it has now put the property on the market.
It is being marketed by Bayleys. It is a sale by tender closing on 4 May 2022, unless it is sold earlier.
The building is 5,418 square metres on 1.5 hectares of freehold land with 154 car parks.
The annual rental to be paid by Bunnings is $446,900 on an 8 year lease running through to the year 2030. There are a further eight rights of renewal for 6 years each, with a final expiry in 2078.
Presumably, MCL will do the same with the New World and Caltex properties.
Stage 2 of the development is now leasing through Bayleys. That consists of the Main Street Retail and Food and Beverage. There are excellent images of the completed development at https://www.bayleys.co.nz/1270254
Mangawhai Central website: https://mangawhaicentral.co.nz/about/
28 APRIL 2022
MANGAWHAI CENTRAL’S WATER SUPPLY
At the public meeting of 24 October 2019 to promote the Mangawhai Central development, Andrew Guest from Viranda and Mangawhai Central Limited (MCL) handed out unconditional financial inducements to community groups. He gave promise after promise to involve the community at every step of the proposed development.
As it turned out, there was virtually no community involvement.
However, there was one important issue where Mr Guest was surprisingly honest. It involved the water supply for the proposed development,
Mr Guest acknowledged that water supply was a problem and that it was an issue that MCL was facing up to and working hard to resolve. He said that MCL was “quietly confident that we will get the water”. The Mangawhai Focus of 4 November 2019 reported Mr Guest:
“Putting a lot of time and money into water… we’re capturing every drop, everything that can be processed and reused, we will be looking at other sources… we won’t allow the aquifers to dry out.
In short, MCL was responsible for providing the water supply, and it was a major issue that had to be overcome.
Plan Change 78 (PC78) was a proposal by MCL to amend Chapter 16 of the KDC District Plan to allow the Estuary Estates land to be developed in accordance with the Mangawhai Central proposal. A Commissioners’ hearing would be held to determine if the proposed development met the requirements of the Resource Management Act.
The adequacy of the proposed water supply for the development was one of the most important issues.
Given the dire picture painted by Mr Guest in respect of water availability in the earlier meeting, it came as a surprise when MCL maintained in its submission to the Commissioners that there was an adequate water supply for the development.
Some of the larger lots in the proposed development were to rely on the normal rainwater collection in tanks on each lot. However, the smaller lots as small as 350 m2 – too small for water tanks – were to be serviced by a reticulated water supply. MCL was relying on a recent NRC consent to draw water from a bore on the property. It was to be pumped to a reservoir and stored. It would go through a treatment process and then delivered to each lot through a reticulation system. MCL would be the water supply authority.
It was common knowledge that in the prevailing drought conditions that the bore would be completely inadequate to provide a secured water supply. The bores of emergency water suppliers in properties adjacent to the Mangawhai Central land were running dry.
It was very surprising therefore, even though the KDC was fully aware of the drought conditions and the issues with bore water, that the KDC fully endorsed the MCL proposal for water supply for the development in the PC78 hearing.
During the hearing a number of submitters from the community explained the dire situation in respect of water availability in the community. A local emergency water supplier explained how his bore (neighbouring the Mangawhai Central land) had dried up and he was having to obtain water supplies from outside the district. These highly relevant personal reports appeared to make a huge impression on the Commissioners.
At the second hearing session MCL surprised everyone by announcing that it had just secured consents from the NRC to draw water from two sporadic watercourses on its property. It also produced flow modelling from an expert in the field to establish that the watercourses would provide sufficient water during full flow periods to be stored in a large reservoir to service the reticulated smaller lots in its proposed development.
In a blatant breach of natural justice, the Commissioners denied the submitters from the community the right to make submissions on this completely new proposal to supply water from the two watercourses. The Commissioners then proceeded to accept the adequacy of the proposed water supply and recommended the adoption of PC78. The KDC followed that recommendation and adopted PC78.
One of the issues raised in the Boonham appeal to the Environment Court was the issue of the adequacy of the water supply. That aspect of the appeal was supported by the NRC and the Fairy Terns Trust.
The details of the mediation process are confidential. However, in general terms it became apparent that that MCL had done little to resolve one of the major issues facing the proposed development, publicly acknowledged by Andrew Guest several years before. It had failed to secure an adequate water supply.
Quite simply, there was considerable doubt, supported by the NRC, that the two water takes would produce an adequate water supply. There were other concerns. The reservoir would have to be massive and costly to store sufficient water during the high flow periods of the watercourses to provide reticulated water for the whole year. There were no plans (at that stage) for the reservoir construction. The new Water Services Act and the impending Three Waters regime also muddied the waters, so to speak. They will have strict requirements in respect of who can operate as a water supplier. There was also concern about the liability of the KDC as the local authority, for public health reasons, to provide and fund an emergency water service for the development if the reticulated service failed.
As a result Mangawhai Matters negotiated an agreement with MCL and KDC whereby PC78 was amended so that the minimum lot size was increased to 500 m2 and the provisions in respect of water supply were amended. The Consent Determination signed by Judge Smith of the Environment Court states:
Changes to PC78 have been agreed to strengthen the water supply infrastructure provisions. The parties have agreed a suite of amendments (including to the Chapter 16 zone description, objectives, policies, and rules) to address matters raised by Northland Regional Council, which subsequently withdrew its s274 notices as a result of the position reached.
In fact the matters had been raised by many submitters during the Commissioners’ hearing and by all the appellants and the section 274 parties (who joined the appeal) during the mediation process for the appeal.
The agreed and final provisions now require there to be an adequate water supply before further subdivision or land use consents can be granted:
By ensuring that the following activities are serviced by water supply including reticulated water supply with adequate capacity to serve the scale and nature of development (in accordance with all relevant guidelines, the Code of Practice referenced in 16.1.6 and legislative requirement for drinking water) and opportunities for water demand management and rainwater harvesting
MCL faces a serious challenge in establishing an adequate water supply if it relies solely on the bore and the two watercourses on its property. It has since applied to the KDC for a consent for a reservoir. That was halted some time ago while the KDC sought further information. No further information has been provided by the KDC on its website.
It will be interesting to see if MCL continues with its reliance on bore water and its two water courses, its reservoir, and its reticulated water supply proposal. It would be enormously expensive to provide such a huge reservoir for the number of small lots involved. It would also face major problems under the Three Waters regime.
Perhaps the agreement by MCL to increase the minimum lot size from 350 m2 to 500 m2 is an indication that it might have to rely on water tanks on each property collecting rainwater.
At least, with the amendments obtained during the appeal, the community can rest assured that MCL will have to establish an adequate water supply before it can obtain any subdivision or activity consents. That means no lots can be sold or buildings erected unless a water supply is in place. If the KDC complies with the new agreed provisions in the District Plan, then, hopefully we will avoid the problems such as those highlighted recently in Karaka, South Auckland, where lots have been sold, and houses built, but there is no water supply.
Note: It is understood that the commercial buildings now being built on the site - Bunnings, New World and Mobil - all rely on collecting rainwater stored in tanks on their lots.
However: For wastewater services the commercial buildings will be connected to the MCWWS. How many residential “connections” does, say, a Bunnings equate to? Those commercial connections will absorb a substantial number of the 298 connections left in the treatment plant (as at December 2021). More on that later.
KDC has indicated that it will not be considering a reticulated water supply for Mangawhai in the next ten years.
The decision of the Environment Court in the Boonham appeal can be seen in full here
A DEBT OF GRATITUDE……
…owed to the submitters on PC78
The whole Mangawhai community owes a debt of gratitude to those in the community who put their heads above the parapet and fought to prevent the destruction of Mangawhai as we know it and love it.
At the outset, Mangawhai Central Limited (MCL) softened up the community with a broad range of promises and financial incentives to promote the Mangawhai Central development. They wooed the community and the KDC, and gained the uncritical support of Mayor Smith and Deputy Mayor Wethey.
However, when it came to the legal side – the changes to Chapter 16 of the District Plan (through Plan Change 78) to enable the development to proceed - things changed dramatically.
MCL employed senior legal counsel and an army of the most respected expert consultants to enforce its own vision for the future of Mangawhai on to the Mangawhai community.
Mayor Smith and Deputy Mayor Wethey, and subsequently Deputy Mayor Curnow, the KDC chief executive, Louise Miller and her staff, all gave their unconditional support to every aspect of the proposed development.
It was more like a partnership between MCL and the KDC, rather than the arm’s-length relationship of a developer and a local authority.
I had been at the public hearing for the consent for the Supermarket and a subdivision as part of the development. Only three submissions had been made, all objecting to the proposal. The KDC, for whatever reason, had advertised the consent application on 16 December in the Lifestyler, but failed to advertise it in the Mangawhai Focus. The submission period expired during the extended holiday season.
One of the submitters attended and spoke at the hearing. I was the only other community member present, but only because I had been alerted to the hearing on the morning of the hearing.
The hearing was a rubber-stamp process. The KDC agreed with every aspect of the proposal. The experts all agreed with each other. And the Commissioners agreed with everyone else.
MCL and KDC clearly got the impression that they could steam-roll through all subsequent consents and processes.
The next cab of the rank, so to speak, was PC78. This was a plan change which would introduce a substantially different sort of development to the one that had been promised by the developer. Whilst introducing some popular retail outlets, the proposals threatened to change the whole nature and character of Mangawhai.
The coalition forces of the MCL and KDC combined to present a powerful united front to push through the proposals. MCL’s expert consultants had every aspect of the proposal neatly packaged and planned. KDC’s planning experts endorsed PC78 in every respect. KDC staff and engineering experts made the requisite assertions in respect of wastewater and water supply infrastructure to bolster the proposals.
What the KDC and MCL did not expect is that members of the Mangawhai community would stand up to fight for their township to prevent the KDC/MCL coalition from destroying their piece of paradise.
199 submissions were made by the community, with a further 9 submissions that were filed after the deadline. Virtually all of those submissions opposed PC 78 and the proposed development for a broad range of reasons.
The groundswell in the community also triggered the formation of Mangawhai Matters, a community group formed to fight for the protection of the special nature of Mangawhai
That was just the start. Many of those submitters bravely stepped outside their comfort zone and decided to speak to their submissions at the Commissioners’ Panel hearing. They did not want their submissions to be buried in the pile of submissions and largely ignored. They wanted the Commissioners to actually hear and absorb what they wanted to say about their township.
At the hearing Mangawhai Matters provided some expert consultants to counter those of the KDC and MCL. But it was the individual submitters who made the greatest impact. It was a very moving experience to hear those submitters express their heartfelt concerns and deep feelings about what they considered was a threat to the magical nature of Mangawhai.
The KDC and MCL were genuinely shocked at the courage and determination of the community. The Commissioners clearly realised that the hearing was not going to be the “walk-over” that was expected.
In the end, and as expected, the Commissioners chose to accept the assertions of the KDC staff and experts, and the opinions of the MCL experts as being correct. They made light of the concerns of the community. They recommended that the KDC accept PC78 in all respects.
But that was not an end of the matter.
KDC adoption of the Commissioners' recommendation
The adoption of the Commissioners’ recommendation by the KDC elected members was a foregone conclusion. The elected members were strongly encouraged by Mayor Smith and Councillor Wethey to accept the better judgment of the “expert” Commissioners.
The KDC staff, presumably under the direction of the chief executive, presented an advisory report that exerted huge pressure on the elected members to adopt the Commissioners’ recommendation.
Legal counsel for the KDC was unbelievably coercive in his address to the elected members, insisting that adopting the recommendation was the only possible outcome, and outlining the inevitable and damaging consequences of rejecting the recommendation. His wording was so oppressive that one of the elected members accused him of bullying.
Only Councillors Larsen and del la Varis-Woodcock voted against the motion to adopt the recommendation.
That was not an end of the fight. It had become apparent during the Panel hearing that the KDC staff and experts were misrepresenting the current capacity of the MCWWS (wastewater scheme).
The KDC and its experts had insisted throughout the hearing that the MCWWS had the existing capacity to accommodate the Mangawhai Central development. At the final session of the hearing Jim Sephton, the KDC’s General Manager Structural Services, scored a clumsy “own goal” by revealing that the treatment plant had only 389 connections left.
It was therefore patently obvious that there was insufficient capacity to accommodate the normal increase of about 90 connections per year, plus the extraordinary demand of 1,000 connections for Mangawhai Central. Quite simply, the KDC staff had misrepresented the situation. This was a massive blow to the integrity of the PC78 proposal, and to the integrity of the KDC staff.
It had also become apparent during the hearing that MCL simply did not have enough guaranteed water supply to support its development. It had been relying on bore water under a consent issued by the NRC, but this was considered to be unreliable.
MCL surprised everyone at the second session of the PC78 hearing by announcing that it had secured consent from the NRC for two water takes from water courses on its property. However, on closer analysis it became clear that there was little security in the water supply, given that the water courses were dried up for most of the year. Water would have to be drawn in the wet season and stored in a 100,000 m3 reservoir, yet to be planned and constructed.
The lack of wastewater and a guaranteed water supply provided fertile grounds for the appeals to the Environment Court. Not just because of those narrow grounds but because of their consequences. The proposal to have 350 m2 lots was no longer feasible if rainwater collection in tanks became necessary.
There was also a distinct change in attitude from MCL. Andrew Guest, the man of many glib promises, left the company. This appeared to signal a recognition of the shortcomings of the development in respect of water supply and wastewater.
In their appeal of the KDC decision, Mangawhai Matters covered most of the issues raised by the community in the PC78 hearings. In my appeal I concentrated on the wastewater and water supply issues. The Fairy Tern Trust sought protection for the fairy terns’ habitat. Peter Rothwell sought protection for wetlands.
During the mediation process MCL dealt with the issues on a reasonable basis. That may be because they realised that there were substantial shortcomings in their proposals that could affect the outcome if the appeal progressed to the Court. In lengthy negotiations with Mangawhai Matters consultants MCL conceded a lot of ground. So much so, that most of the boxes of challenges have been ticked.
The decision of the Court in the Boonham appeal tightened the meaning of “planned” capacity so that the KDC cannot adopt its own subjective interpretation of “planned”. Any planning and its funding must be included in a long term plan and, importantly, consulted with the community.
The two appeals were highly successful but they were empowered by those members of the community who made the effort to challenge the combined forces of MCL and KDC. The community's response to PC78 stopped the KDC and MCL in their tracks. That was followed through in the appeals to a successful conclusion.
So, take a bow all those in the community who made submissions on PC78. You did your bit to save Mangawhai. You also proved that the saying “You can’t fight City Hall” is not always true.
ENVIRONMENT COURT TIGHTENS THE PC78 WASTEWATER PROVISIONS
Yesterday the Environment Court released its decision on the Boonham appeal.
Environment Court decision
Judge Smith referred to the background information provided by Mr Boonham relating to significant historic difficulties experienced with the construction of the wastewater plant and the resulting debt. He referred to Mr Boonham’s concern that “history may repeat itself”.
Judge Smith commented:
 His concern is to ensure that [the development] does not proceed in circumstances where the future wastewater demand cannot be dealt with. I see this as a reasonable expectation.
Judge Smith examined the purpose of the negotiated provisions in respect of wastewater:
 Whilst helpful I consider that both the general provisions and the assessment criteria do not give sufficient emphasis to the necessity of having adequate wastewater systems in place.
 It must be the purpose and outcome of such provision to avoid adverse effects on the environment (and in particular on public health and on the aquatic environment). The wastewater system must at all times be able to cope with the wastewater produced by those connected to it. It appears that all resource consents must have regard to the various assessment criteria.
 It is arguable that on the current wording the Council could reach the conclusion that the subdivision or development may be permitted even though sufficient wastewater capacity is not in place. Although it is not within the scope of this hearing, it seems relatively clear that action by a Council to grant a consent where environmental effects could occur may lead to proceedings in the Environment Court or High Court.
 Accordingly, the question for this Court is what level of importance should be given to ensuring that the infrastructure is in place at a time when a subdivision or development is in contemplation.
Judge Smith acknowledged the reason for the appeal:
 I acknowledge the basic thesis of Mr Boonham’s submission: that there needs to be sufficient certainty in relation to wastewater being available for a development when that subdivision consent and development consent are granted.
He also felt that the agreed provisions, and the KDC’s proposed alternatives, had failed to provide that certainty:
 In the end, I have concluded that the agreed provisions or Council’s proposed changes fail to place sufficient emphasis upon the existence or planned provision of the infrastructure.
Accordingly, Judge Smith adopted Mr Boonham’s suggestion that the wording of the provisions should be based on the wording in the National Policy Statement-Urban Development (NPS-UD), namely:
That there is adequate existing wastewater infrastructure, or funding for adequate wastewater infrastructure to support the development is identified in a long-term plan.
The Court considered the inclusion of infrastructure plans in a long term plan was essential for both the builder and the developer:
 Under the NPS-UD, in circumstances where no long-term plan is made for the infrastructure, it would seem inappropriate for councils to provide for subdivision or development. On the other hand, were they do so in reliance upon the long-term plan funding for adequate wastewater infrastructure, they have created a legitimate expectation by developers that the same will be provided within the timescale
The Court also decided that the amendments should apply to all five provisions:
 I conclude that the wording now suggested is sufficiently concise and clear that it will not create difficulties with interpretation, particularly with any other provisions which may be slightly differently worded.
A final Memorandum will be drawn up based on the negotiated agreement of the parties and the amendments made pursuant to the appeal decision. The Court will then make the appropriate order confirming the agreement. This will then be adopted by the KDC elected members. Chapter 16 of the District Plan will be amended accordingly.
Mangawhai Central Limited can then proceed with the development in accordance with Chapter 16 as amended by PC78.
05 APRIL 2022
THE BOONHAM APPEAL
The wording of the wastewater provisions
The meaning of “planned” capacity
To summarise: The previous post (below) explains that the agreed amended provisions in PC78 state that further subdivision and land use consents for Mangawhai Central cannot be granted unless there is adequate existing wastewater capacity or adequate “planned” capacity.
The Boonham appeal relates to the word “planned”, and suggests that the wording of the relevant provisions be more robust and objective by stating that the planning and its funding must be included in a long term plan (LTP).
Having planned capacity has become necessary because it is clear beyond any doubt that there is insufficient existing capacity to accommodate the 1,000 or so connections required by Mangawhai Central, along with normal annual growth about 90.
The adequacy of capacity therefore hinges on there being “planned” capacity that will be able to meet future capacity demands.
The concern arises because of the very subjective and bizarre meaning of “planned” adopted by the KDC.
At the Commissioners hearing of PC78 in November 2020 the submitters from the community largely rebutted the assertions of the KDC and the experts for KDC and Mangawhai Central Limited (MCL) that the MCWWS had existing capacity to accommodate the demand from the Mangawhai Central development.
The Panel therefore required the KDC to provide further information on future planned capacity “relating to infrastructure planning and funding decisions for wastewater for Mangawhai, and in relation to Private Plan Change 78 (PC 78)”.
The Panel also sought evidence of funding decisions for the planned capacity in the “KDC’s long term plan or the next review of the long term plan”. (My underlining)
The response from the KDC was authored by Jim Sephton, the KDC’s General Manager Infrastructural Services at that time.
Somewhat surprisingly, Jim Sephton confirmed the claims of submitters when he revealed that the treatment plant had very limited capacity:
The latest available figures show that the CWWTP currently has 2411 connections with the immediate capacity for a total of 2800 connections. This means that there is currently capacity for an additional 389 connections.
It was therefore impossible for the MCWWS to accommodate the 1,000 or so connections from Mangawhai Central, as asserted during the hearing by the KDC, MCL, and their experts. This meant that the provision of capacity depended solely on future “planned” capacity.
Jim Sephton’s response contained vague information about the contents of the yet-to-be-adopted long term plan for 2021/2031 and such blatantly incorrect assertions such as
3.8 There is currently planned capacity available for the Mangawhai Estuary Estates and if approved, PC78.
There is no evidence of such “planned” capacity.
Evidence of the KDC
On 11 February 2022 the KDC filed its evidence in the Environment Court on the basis that the appeal would proceed from the Mediation process to the Environment Court for a hearing. That did not happen – except for a limited issue on the Boonham appeal which is being considered by the Court without a hearing (“on the papers”).
In her evidence, Sue Davidson, General Manager, Sustainable Growth and Investment and the acting General Manager, Infrastructure Services at Kaipara District Council, states that as at December 2021 there are only 298 connections left in respect of the treatment plant.
She also confirms that In respect of the disposal field at Browns Road there are only 500 connections remaining.
Clearly, with such ever-decreasing capacity available, there would have to be a considerable amount of “planned” capacity to meet the future requirements of Mangawhai Central.
KDC’s version of “planned” capacity
As mentioned above, in his further information to the hearing Commissioners Jim Sephton made wild, unsubstantiated assertions in respect of there being currently planned capacity for Mangawhai Central.
This same approach is adopted by other KDC staff and experts in their recent evidence. Sue Davidson can only point to the construction of the balance tank as being planned through the current LTP. It is a temporary fix for the capacity crisis. All of her other references to planning are vague and ill defined. For instance, she refers to:
“the Council Intends, over time, to progressively upgrade the capacity of the MCWWS”
“the Council is actively planning to upgrade a number of aspects of the MCWWS”
“the Council is planning to service all growth in Mangawhai using the MCWWS, and planning to progressively increase the capacity of the MCWWS in response to population growth.”
“the Council is planning to provide for additional effluent disposal capacity”
“Overall, the Council is committed to progressively upgrading the capacity of the MCWWS to service all planned growth in Mangawhai, including the growth proposed under PC78”
Lots of intentions and commitment to future planning, but no actual planning.
The KDC’s expert planning consultant expresses the following opinions in his evidence of 11 February 2022:
It is my opinion that:
(a) Existing wastewater infrastructure exists in the form of the MCWWS;
(b) Council has a clear plan to upgrade the MCWWS to cater for additional demand in the future;
So not only is there existing capacity (undefined), but KDC has “a clear plan” to upgrade capacity.
The consultant sums this up:
“Council has committed to continue expansion to cater for future subdivision and development”
Intentions and commitment to make plans do not equate with actually having formal, legal plans in place along with allocated funding.
It is clear from all of these documents that the KDC has adopted the view that having an intention, or a commitment, to plan future capacity equates to actually having “planned” capacity.
So, when it comes to the KDC staff granting consents for subdivision or land use, the KDC staff can assert that there is "planned" capacity because that is the clear intention or commitment of the KDC. An opinion from an expert consultant would reinforce that.
The importance of an LTP
The hearing Commissioners sought assurance that any planned infrastructure was included in an LTP to avoid this situation. They did so for a very good reason.
An LTP is requires a special procedure under the Local Government Act 2002 (LGA2002) whereby planning and the funding for such infrastructure has to be spelt out in great detail. It has to be considered by the elected members. It then has to go through a formal consultation process with the community.
If the decision-making relates to a significant matter – which the Mangawhai Central development is – then even more stringent requirements have to be met.
Why does the KDC want to avoid the LTP process?
Simply because, so far, it has manipulated the system so that nearly all decisions in relation to Mangawhai Central have been made effectively by KDC staff. The elected members and the community have been side-lined.
If the KDC has to go through the LTP statutory process then it will be obliged to disclose various issues that it has kept secret from the community.
The Environment Court has not yet made a decision on the Boonham appeal and whether the wording “planned capacity” is to be amended to include the reference to an LTP.
Next: The secrets that the KDC does not want to reveal.
31 MARCH 2022
PC78 and the Fairy Terns
Members of the Fairy Tern Trust, with their Barrister Sarah Shaw, negotiated amendments to PC78 that gave greater protection to the fairy tern population.
Fairy Tern / Tara Iti:
A range of changes have been agreed to address potential effects on NZ Fairy Tern / Tara Iti, including:
(i) Changes to Policy 18.104.22.168 14), providing for the precautionary approach with respect to adverse effects on the habitat of Fairy Tern / Tara Iti and their food sources.
(ii) Identification of a Coastal Buffer Overlay on the PC78 Structure Plan map, within which certain activities are provided for as non- complying.
(iii) Amendments to a range of matters of discretion to explicitly refer to potential effects on the habitat of Tara Iti / Fairy Tern and their food.
The matters in (iii) included:
The Boonham appeal
As stated in an the last post (see below), the only appeal that has proceeded to the Environment Court is the Boonham appeal.
It is a very narrow appeal and concerned with only one single issue: The wording of five provisions relating to the capacity of the wastewater infrastructure, namely the Mangawhai Community Wastewater Scheme (MCWWS), previously known as EcoCare.
During the Commissioners hearing of the PC78 proposal to amend Chapter 16 of the District Plan, KDC staff and their expert witnesses asserted that there was adequate existing capacity in the MCWWS to accommodate the whole of the Mangawhai Central development. This was supported by the experts from Mangawhai Central Limited (MCL).
Along with other submitters, I rebutted those assertions, disclosing a report by WSP consultants which outlined the capacity issues of the MCWWS.
Consequently, the Commissioners required the KDC to produce information on the planning for further capacity and its funding.
The response from the KDC General Manager Infrastructure Services, Jim Sephton, was a mish-mash of intentions and vague commitments, but nothing in the way of actual planning in the legal sense.
As a result the Commissioners decided to side-step the issue of wastewater capacity on the basis that this was only a plan change. They felt that the issue of wastewater capacity would be considered fully at the later stages when the developer applied for subdivision consents and land use consents. Those consents could not proceed unless the adequacy of wastewater was established at that time.
This approach was adopted by Mayor Smith and Councillor Wethey. In the KDC meeting to adopt PC78 they both argued persuasively that the issue of wastewater capacity at the plan change stage was not important as it would be considered more fully at the later consent stage.
The wording of the provisions in PC78
The Mediation process was aimed at resolving the final wording of the provisions relating to Chapter 16 of the District Plan and the development of Mangawhai Central. Some of those provisions relate to the granting of consents for the subdivision and land use, and specify the conditions for the granting of those consents.
This is the point that the commissioners identified as the point where the adequacy of wastewater capacity had to be established if consents were to be granted. As this was the “fall-back” position, and the final assessment of adequacy of capacity, the wording of the relevant five provisions was vital.
Mangawhai Matters had negotiated provisions relating to the adequacy of wastewater. These are robust and require a water supply to be available. However, I considered that the wording of the wastewater provisions did not achieve their purpose. They required there to be adequate existing wastewater capacity or adequate planned capacity.
The adequacy of existing wastewater capacity is no longer an issue. Both the KDC and MCL both finally acknowledge that there is not enough existing capacity in the MCWWS to meet the demand of Mangawhai Central. Further planned capacity is needed.
It therefore turns on the adequacy of “planned capacity”. In particular the meaning of the word “planned”.
One would have thought that in a legal context, such as this, that “planned” simply meant “planned according to law". In other words, the KDC was obliged to comply with the planning provisions set out in Part 6 of the Local Government Act 2002.
Not so, according to the KDC. Jim Sephton and his successors at the KDC have adopted a meaning of the word “planned” that has nothing to do with legal planning processes. As a consequence, on the basis of KDC’s interpretation of “planned”, the subsequent issuing of consents can proceed without there being “planned” capacity in the legal sense. And the decision to grant those consents will be made by KDC staff who have adopted the bizarre meaning of “planned”.
The whole point of the appeal now before Judge Smith is to tighten those provisions to ensure that any future wastewater capacity is planned and funded according to the requirements of the legislation (LGA2002). The last thing we need is for the KDC to grant future consents based on its own whimsical interpretation of the amended provisions.
NEXT: The bizarre interpretation of “planned” adopted by the KDC.
28 March 2022
An update on the Plan Change 78 appeal .........
First, some background:
PLAN CHANGE 78 - MANGAWHAI CENTRAL
Plan Change 78 encompasses all the changes to Chapter 16 of the KDC District Plan which enables the Mangawhai Central development to proceed.
A public hearing was held before commissioners in 2021. Despite the overwhelming opposition from the community, the commissioners recommended that PC78 be adopted in its entirety by the KDC. At a subsequent Council meeting the KDC elected members voted to adopt PC78. Councillors del la Varis-Woodcock and Larsen voted against it. Deputy Mayor Curnow recused herself as she was one of the commissioners.
Two appeals against PC 78 were filed in the Environment Court. One by community group Mangawhai Matters, on a broad range of issues. The other was filed by Clive Boonham, (the author of this article) again on a broad range of issues, but principally in respect of the need for an adequate water supply and wastewater infrastructure.
The Mangawhai Matters' appeal was supported by Peter Rothwell as a section 274 party. His principal concern was the issue of stormwater and its adverse effects on wetlands. That appeal was also supported by the NZ Fairy Tern Trust (also a section 274 party) because of the effects of the development on the habitat of the fairy terns.
The Clive Boonham appeal was supported by the NZ Fairy Tern Trust. In addition the Northland Regional Council (NRC) supported that appeal on the issues of water supply and wastewater infrastructure.
The RMA requires that prior to any hearing in court, the parties are directed to try and resolve their issues through mediation. Accordingly, three separate mediation sessions were held, in November 2021 and January and February 2022. All were held remotely by computer because of the Covid situation.
The NRC withdrew from the mediation. It withdrew from the Boonham appeal in respect of wastewater adequacy before mediation commenced. In respect of water supply, it obtained a peer review of the quantity of water from the two water takes that it had consented, but then withdrew from that part of the appeal. It advised that it would hold a "watching brief" over the adequacy of water supply issue.
Between the second and third mediation sessions Mangawhai Matters negotiated directly with KDC and Mangawhai Central Limited (MCL). During the third session agreement was reached by those parties on a package of amendments to PC78. The agreement was subject to Clive Boonham's acceptance of the package.
The package included some excellent results for the community (see the Mangawhai Matters facebook page). In respect of my major concerns over the adequacy of the water supply, I was happy with the negotiated provisions that required that an adequate water supply be available at the time of subdivision or land use consents. But, in respect of wastewater adequacy, I felt that the negotiated provisions were not robust enough. I therefore declined to sign the agreement.
The Fairy Tern Trust and Peter Rothwell were not parties to the Mangawhai Matters agreement. However they negotiated their own terms with the MCL and KDC. (More details to come). They also endorsed the agreement reached by Mangawhai Matters as part of the overall settlement.
In a judicial conference, Judge Smith decided that the mediation had been successful and that the hearing date in April for the appeal should be vacated. He also decided that my issue with the wording of the wastewater provisions should go forward as an appeal to be heard by the court. However, because it was a relatively simple matter of deciding of the wording of five provisions, the appeal should be "on the papers". In other words, there would be not formal hearing in court. The appellant (Clive Boonham), KDC and MCL would file their submissions on the issue, and the court would then decide which wording was to be finally adopted.
All of those submissions have now been filed, and we are waiting to hear the decision of Judge Smith.
Once that final issue is resolved, a final consent order will be drafted with an attachment setting out the final provisions that have been negotiated by all of the parties to the PC78 appeals. This document will be signed by all the parties and then endorsed by the Court. On receipt of the order the KDC will resolve to amend Chapter 16 of the District Plan in line with the agreed PC78 amendments.