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LATEST NEWS

MAYOR GENT POINTS THE FINGER  28.04.2016
Kaipara Mayor Greg Gent has cried ”Foul” over the way that he and Deputy Mayor Peter Wethey have been treated by the Associate Minister of Local Government, the Department of Internal Affairs, and the government.

He claims in the Northern Advocate that the government indicated prior to the local election last year that it would take care of the past rating issues through the Crown Manager whilst the newly elected council could concentrate on the future. He suggests that he was misled:

“You could argue that there has been a breach of contract by the Minister”

Greg Gent

There was no contract, at least not that I know of, but there is little doubt that Greg Gent and Peter Wethey were seriously misled by Associate Minister Louise Upston. They both made it quite clear publicly before the election that they were only standing on the basis that the Crown Manager would take sole responsibility for historic rating issues, as promised by the Associate Minister.

Louise Upston

It now turns out that the appointment of the Crown Manager was ultra vires. That means that the Associate Minister did not have the power to appoint a Crown Manager with the powers that she purported to give him. The Local Government Act is very specific about who can appoint a Crown Manager and the powers that can be granted.

Louis Upston is probably innocent as well. The LGA and her Ministry is advised by the Department of Internal Affairs (DIA) which offers advice on policy and legal advice. Someone in the Department stuffed up in a big way and has now left Louise Upston, Jacqui Dean (the new Associate Minister), Greg Gent and Peter Wethey high and dry.

Mind you, they were all warned that the appointment of Peter Winder as Crown Manager was unlawful. In a post on kaiparaconcerns (scroll down to ELEPHANT IN THE ROOM 10.09.2016) I warned that the appointment of Peter Winder was unlawful.

On 2 November 2016 I also advised the government that the appointment of the Crown Manager was ultra vires. I sent detailed legal submissions to the Minister of Local Government, the Associate Minister of Local Government, to the Prime Minister, John Key and to all the members of the Cabinet.

I finally received a response on the day that the Jacqui Dean announced that Peter Winder was terminated.

During that time, according to Greg Gent’s comments, the DIA obtained a legal opinion which concluded that the appointment of the Crown Manager was unlawful. But, apparently no one told Greg Gent and Peter Wethey what was going on. They were left in ignorance.  But, and more importantly, the Crown Manager was allowed to carry on for several months acting unlawfully and making decisions on behalf of the KDC that are now, in law, a nullity.

The ultra vires appointment of Peter Winder was a legal disaster, but the failure to take immediate action last October and allowing him to make unlawful decisions has made the situation almost irrecoverable.

Of course the new Associate Minister Jacqui Dean puts a spin on the whole thing. Wary of the shonky advice received from her advisers in the past, she puts the poisoned chalice down and states, no doubt through clenched teeth:

“I am advised that past directions of the Crown Manager stand because they were made in good faith.”

Jacqui Dean is a smart cookie. She was deputy mayor of the Waitaki District Council. Her husband is a lawyer. She knows that she has been betrayed by her advisers.  But for the sake of her political future she is obliged to continue to mouth the weasel words that they churn out to cover up their ineptitude.

Note how the comment relates solely to “past directions” of the Crown Manager. That is carefully crafted. The problem is that the Crown Manager was given the power to make decisions and to take actions on behalf of the KDC totally independent of the council. Those powers were ultra vires. The only legal power available to the Crown Manager was to “direct” the council to take action, with the council making all the decisions and taking all the actions. However, the Crown Manager did not direct the council in any way, so the “past directions” are valid, because there weren’t any. But, and this is what the statement cleverly glosses over, what of all the ultra vires independent decisions and actions that the Crown Manager took without any reference to the council?

Jacqui Dean

In respect of the good faith claim, Jacqui Dean knows as well as any first year law student that ultra vires actions, that is actions taken outside the scope of statutory powers, are a complete nullity. They can have no legal affect at all.

Acting in good faith, that is mistakenly believing one had the legal power to act, is completely irrelevant. Ultra vires acts cannot be validated by ignorance.

This falsification of the legal situation by the Associate Minister on the advice of her advisers is an utter disgrace.

It is dirty tricks of the first order and illustrates the depths to which the government will go to cover up its ineptitude.

Jacqui Dean has promised help to Greg Gent and Peter Wethey to sort out the mess.  The reality is that the LGA does not allow her to split the decision-making of a local authority. Either the council has full powers, with advice from a Crown Observer and directions from a Crown Manager, or the Minister appoints a Commission which assumes the full powers of an elected council.  Back to the future.

The irony of all this is that in 2012 Greg Gent and his review team were appointed by the Minister to review the out of control KDC. That appointment was also ultra vires. At that time a review team could only be appointed following a protracted process. The Minister ignored that and appointed the review team anyway. When I challenged the appointment as being ultra vires the response was that the KDC had requested the appointment and, in any case the law was in the process of being changed.

Requesting the Minister to act does not validate ultra vires powers, and we all know that the law in force at the time of the action is the current law.

The Minister took no action on that occasion to rectify that situation.  Greg Gent knew at the time of the allegation that the appointment of the review team was ultra vires but proceeded to act and make decisions on that basis.

It appears that the wheel has come full circle.

Skeletons don't go away

See also:

Kaipara Lifestyler

Winston Peters

Bob Dey Property Report

CROWN MANAGER TERMINATED 20.04.2017
Peter Winder, the Crown Manager for the KDC has been terminated.

That is the delightful phraseology of the formal notice in the Gazette.

What the Associate Minister of Local Government meant to say is that the appointment of Peter Winder as Crown Manager for Kaipara has been terminated, which is the correct terminology under the LGA. But she won’t use “termination” in relation to “appointment” because in fact Peter Winder was never legally appointed. You can’t legally terminate something that never legally happened.

The Associate Minister uses the same delicate phraseology in her Media Statement of 19 April when she states that the Crown Manager has been “withdrawn”.

Peter Winder

Gone by lunchtime

Back in November last year, Legal Eagle posted on this website that the appointment of Peter Winder as Crown Manager was unlawful, as were his terms of reference. I made detailed legal submissions to the Minister and Associate Minister. Nothing happened for some time with the change of Minister and Associate Minister when Bill English became leader of the government. However, recent prompts for a response, with the last on 18 April, resulted in the Associate Minister’s Media Statement the following day.

The Media Statement is a fine example of political duplicity.

The Ministry of Local Government and the Department of Internal Affairs, which runs local government in New Zealand, would have obtained a legal opinion to examine the allegations that I had made.

That opinion would have confirmed my submissions to be correct because the terms of reference were so blatantly in breach of the Minister’s powers under the LGA.

The problem facing the Ministry and the Department was that, because of his ultra vires terms of reference, Peter Winder had acted unlawfully as Crown Manager and made unlawful decisions, and taken unlawful actions on behalf of the KDC. These relate to instructing legal counsel in respect of the judicial review proceedings in the High Court and in respect of the appeal to the High Court in respect of the District Court claim by the KDC against Bruce and Heather Rogan for arrears of KDC and NRC rates.

The consequence of the unlawful appointment is that legal counsel were not lawfully instructed by the KDC and they have been acting, effectively, without any authority from the KDC.

The ramifications of this abuse of legal process has yet to be worked out.

The only way that the unlawful decisions and acts of the Crown Manager could be legalised retrospectively is through Parliament enacting validating legislation. But in an election year, with Winston hovering with his axe in hand, that is unlikely to happen.

The only way out of the mess is for the government to try and bluff its way out of it by minimising what has happened. And that is what it has done.

The Associate Minister suggests that the action in withdrawing the Crown Manager was in response to “an evaluation of assistance to the Council” when in fact it was direct result of Legal Eagle’s submissions on the matter.

Note that there is no mention of illegalities in the Media Statement but a reference to “technical uncertainties” and “potential technical flaws”. No reference to fundamental and blatant breaches of the law.

But the biggest white-wash is in respect of the effect of the breaches of the LGA. The Associate Minister refers to the “potential technical flaws” and states:

This does not bring into question prior actions of the Crown Manager, but if the role continued there would be uncertainty about the legality of future actions.

That is patently wrong. Why would such technical flaws affect the legality of future actions but not past actions?

The truth is that every action of the Crown Manager was unlawful and no dissimulation by the Associate Minister will change that. End of story.

Consequences

This is a legal mess of the highest order.

As stated, the ramifications for the High Court legal actions are complex and that has to be sorted out. But it is clear that the KDC is not responsible for any legal costs incurred by the Crown Manager in respect of the pending legal cases because he was acting ostensibly for the KDC but without any legal authority. At first blush it would appear that the Crown Manager is personally responsible for those costs, but he may be able to recover those costs from the DIA because of its negligence in appointing him on an unlawful basis.

There is a provision in the LGA (section 258Y) that the Crown Manager is not liable for any acts done by him, but those acts have to be done in the exercise of his powers as a Ministerial appointee. However those powers were ultra vires and a nullity in law. Section 258Y goes on to state that the protection only relates to acts done in “directing a local authority to act”. Peter Winder did not do that. He made decisions and acted completely independently of the KDC.

The remuneration for the Crown Manager is paid by the Crown and then recovered from the KDC as a debt owing. No doubt the KDC has paid the invoices that it has received from the Crown. However, because the Crown Manager’s appointment and terms of reference were unlawful, the KDC is entitled to a refund from the Crown of all monies paid to Peter Winder.

The Associate Minister promises, somewhat vaguely, in the Media Statement to provide ongoing support to the KDC.

The problem that she faces is that her Ministry and the DIA misled the prospective candidates at the election last year into believing that under the sham semi-democracy, they would only be responsible for the future of Kaipara. The murky past, with all the illegalities, would fall within the domain of Peter Winder as Crown Manager.

The reality is that a Crown Manager cannot have such powers under the LGA. The elected members must make all decisions, and because a local authority is a body corporate with perpetual succession, the newly elected Council is responsible for all illegalities, past, present and future.

The Gent Council has now been dumped with managing the current legal actions against the Rogans and other ratepayers and defending the judicial review proceedings of the MRRA. So far the commissioners and Peter Winder as Crown Manager have acted at the behest of the DIA which appears to be driven by the desire to crush the rule of law in Kaipara and place the KDC outside the reach of the law. The Gent Council will now have to instruct the KDC’s solicitors in preparation for the hearing on 30 May. What those instructions are will give us clear indication of where the new Council is going and what we can expect from it in the future.

There is no way that the new Council can shirk from its new-found responsibilities. The elected members have every right to feel peeved at the gross mismanagement of the whole business by the Ministry and the DIA, but the reality is that there is nothing in the lawful armoury of the Minister under the LGA that can help them. Except, of course the appointment of commissioners.

It will be interesting to see how the Ministry and the DIA will conjure up some assistance for the KDC that is within the law.

In the meantime, the Associate Minister’s failure to fully face up to the unlawfulness of the Ministry’s actions in appointing the Crown Manager, and the gravity of the resulting situation, leaves everything in legal limbo. Once again, as the government ducks for cover, it may be up to ratepayers to seek help from the courts to ensure that the rule of law is still relevant in Kaipara.

AUDITOR-GENERAL WARNS OVER UNLAWFUL RATES   17.04.2015
Duffy J’s declarations of unlawfulness (see earlier post) have drawn little response from local authorities. They tend to sweep such issues under their oversize and somewhat bumpy carpets

However, the new Auditor-General, the recently appointed Martin Matthews, has highlighted his concerns over the effect of the ruling of Duffy J and the widespread impact it will have on the validity of local authority rates in New Zealand.

The Auditor-General’s comments are to be found in the report just tabled in Parliament, Local government: Results of the 2015/16 audits. That is, audits of all the local authorities in New Zealand. The Overview can be seen here, the summary of the report can be seen here, and the full report here

A special part of the full report is dedicated to comments about the High Court judicial review of the rates of the KDC and the NRC. It can be found in Part 5 – Rates issues at page 23.

The report is timely. The Gent council appears to have inherited certain attitudes from the commissioners in respect of unlawful rates, rates strikers, and the obligation to pay rates and one would hope that the warnings from the Auditor-General would bring about a complete re-think of attitudes.

The view of the Mayor and some of the current Councillors suggests that ratepayers have an absolute legal obligation to pay rates; that local authorities are entitled to rely on rates being paid to meet their obligations such as roading and other expenditure. If ratepayers withhold their rates then other ratepayers will be obliged, unfairly, to make up the difference.

That is not the situation. Local authorities do have the power to set, assess and collect rates to meet their commitments. However, Parliament has laid down certain rating procedures that must be complied with to ensure that rates are set and assessed incompliance with the law. Both Parliament and the courts recognise that the charging of rates is akin to levying coercive taxes and therefore absolute compliance with the law is required.

In short, ratepayers are obliged to pay their rates, but only if the local authority complies with the law and sets and assesses the rates lawfully.

That did not happen in the past in Kaipara. All the EcoCare rates set by the McKerchar/Tiller regime were blatantly non-compliant (as were some other rates), but as readers will recall, the Minister of Local Government, Audit New Zealand and the Office of the Auditor-General all turned a blind eye even when the blatant illegal transgressions of the KDC were laid out in front of them. The KDC was given tacit approval by the so-called watch-dogs to charge ratepayers unlawful rates.

When ratepayers went on a rate strike to force the government to take action and enforce the rule of law, the National government pushed through a validation bill to validate all the illegalities, gazumped the MRRA judicial review of the rates that was before the court, and compelled ratepayers to pay vindictive penalties on the rates that had been retrospectively validated. In addition the government appointed commissioners ensured that those responsible for the unlawful EcoCare debts of the KDC were not held liable.

It would be nice to think that the Validation Bill would have served as a warning to the KDC and the NRC that extreme care was necessary in its rating processes and in its rating documents to ensure that they were in compliance with the law. That has not happened and some of the rating documents of the KDC and NRC continued to be in breach of the requirements of the LGRA.

Over the years Legal Eagle and others have pointed out the defects in the rating documents but the commissioners dismissed all challenges as having no substance. Not only that, they threatened rate strikers with legal action to recover the unpaid rates, pursued many through their mortgagees, and issued over one hundred legal actions against striking ratepayers.

That resulted in the representative defence by Bruce and Heather Rogan to an action for recovery of unpaid rates, and the Rogans and the MRRA seeking a judicial review of the KDC and NRC’s rating decisions.

As detailed in the post below, Duffy J has so far held that the rates of the NRC were unlawful and that the KDC acted unlawfully in setting the rates of the NRC, in adding penalties to the unpaid rates of the NRC, and in taking steps to recover the rates of the unpaid rates of the NRC.

Duffy J will make her final rulings on the matter and on the case against the Rogans following the hearing in the High Court on 30 May.

The Office of the Auditor General (OAG) has finally woken from its lethargy under Lyn Provost and, as a result of Duffy J’s judgment, sounded a warning to the whole of local government, and to Parliament, on the widespread non-compliance with the law in respect of rating. In his Overview of the report the Auditor-General summarises the obligations of the elected members of a local authority:

Getting it right

Elected members are ultimately responsible for “getting it right” when it comes to what the local authority does and how it does it. This means that elected members should ask appropriate questions and be satisfied that their local authority has appropriate policies and practices in place.

A local authority’s power to set rates is essentially the power to tax people for the costs of the services the local authority provides. A recent High Court decision highlighted the importance of getting it right when setting rates. Although setting rates can be complex, it is concerning that some local authorities are not meeting best practice. Local authorities are responsible for ensuring that they comply with their legal and accountability obligations.

In the report itself the Auditor-General goes into greater detail:

5.2 A local authority’s power to set rates is essentially a power to tax people for the cost of the services that the local authority provides. The judgment reflects the strict approach that the courts take to interpreting legislation that gives entities the power to tax, and reinforces the extreme care that local authorities need to take to set and collect rates correctly.

5.3 A public entity is responsible for ensuring that it complies with its legal and accountability obligations. In the context of setting rates, local authorities are responsible for ensuring that they comply with all aspects of the Local Government (Rating) Act 2002 when they set, assess, invoice, collect, and recover rates.

5.4 Rates are a significant part of a local authority’s revenue. This is reflected in the audited financial statements. The purpose of an audit is to increase the confidence that the public can have in the reported information. In our audits, we seek reasonable assurance that rates revenue has been properly calculated and that there is no major risk to the rates revenue reported.

Impact of the High Court decision

the OAG report suggests that the legality of the rates of four regional councils might be affected by the unlawful delegation ruling (para 5.20). In addition 16 local authorities need to consider the way in which water rates are charged.

In summary the report suggests:

5.26 The judgment reinforces that rate-setting processes and arrangements require care and precision. Some established arrangements might need to be reconsidered for lawfulness.

That is an understatement. The problem does not lie with “established arrangements” being reconsidered and rating documents amended for the future so that they ate legally compliant. That is easily accomplished if local authorities are so minded.

The problem lies with the damage that has been done in the past. If the past rates of all those local authorities are in fact unlawful then it means that they are open to legal challenge by the ratepayers of those districts.

In addition, the High Court has yet to decide on the legal consequences that flow from the declarations of unlawfulness that it has already made.

The unlawfulness of the NRC rates means that all its rates for the relevant years are unlawful, as are any penalties that were charged. It also means its rates assessment notices and rates invoices are unlawful. Because it shares each of those documents with the KDC, it follows that the unlawfulness of the NRC rates taints the whole document and renders the whole document unlawful. Consequently the rates of the KDC are rendered unlawful.

The NRC adopted the same delegation arrangement in respect of FNDC and the Whangarei District Council, so that the legality of the NRC rates for those districts is challengeable, as is the legality of the rates set by the FNDC and the Whangarei District Council.

The same consequences apply to other local authorities which adopt the same processes.

More illegalities in rates

Whilst the High Court has recognised some of the illegalities in the rates and rates processes of the KDC, the NRC and possibly other local authorities, there are, as stated above, other ongoing blatant legalities in the rating documents of the KDC, the NRC and most other local authorities in New Zealand that have not been challenged in court.

For example, the most recent rates invoice received by all ratepayers in the Kaipara District is unlawful and as such it does not create a ratepayer’s liability to pay the rates under the LGRA.

A rates instalment invoice must by law be for the amount of the instalment only. Whilst information may be included about previous unpaid rates and penalties, the amount payable under the invoice must be for the current instalment only. Likewise the last date for payment must relate to the payment of amount of the current invoice only.

Ratepayers have the fundamental statutory right under the LGRA to pay each incurrent instalment before the due date without incurring any instalment penalty. That applies even if a ratepayer has arrears of rates.

The KDC and the NRC deny ratepayers that right. The TOTAL NOW Due under the invoice is not the instalment only but an invoice for the instalment and all arrears. The LAST DAY FOR PAYMENT does not refer to the instalment only but to the instalment and all arrears. The invoice then adds the following provision.

If you do have any rates arrears, any payments that you make towards your rates will be credited first towards the oldest amount due.

So if a ratepayer exercises the statutory right to pay an instalment without an instalment penalty being incurred, the amount paid will not be applied to that instalment but to the oldest arrears.

This policy, in blatant contravention of the LGRA, has been rigorously enforced by the KDC and the NRC.

Those ratepayers who have withheld their rates have done so because of fundamental legal principles and because they saw that the decision not to remit penalties incurred during the rate stake as a callous act of retribution by the government-controlled commissioners against those who had protested for the return of the rule of law to Kaipara.

But those ratepayers were still prepared to pay their rates. In 2013 they tendered all their outstanding rates to the KDC. But the commissioners refused to accept them because they did not include the penalties. They wanted their full pound of flesh.

Those same ratepayers would have paid each rate instalment as it fell due, to avoid further instalment penalties, but the unlawful rates invoices of the KDC and the HRC have prevented this.

Legal situation

This current illegality of the rating documents of the KDC raises interesting legal issues.

The Crown Manager was appointed to take exclusive responsibility for all issues arising from historic rating illegalities of the KDC. In granting those powers to the Crown Manager the Minister curtailed the statutory powers of the elected council to make all decisions in respect of the KDC.

Interestingly, Minister did not appoint a Crown Manager for the NRC which has massive issues with historic rating illegalities and shares rating documents with the KDC.

Legal Eagle’s view is that the powers granted to the Crown Manager - to make decisions and take actions on behalf of the KDC - are ultra vires However, that issue is irrelevant because the illegality of the KDC and NRC current rates invoice is not related to past irregularities. The defective invoices have been issued by the newly elected councils of the KDC and the NRC since they were elected last year. They are very much current and ongoing issues.

Greg Gent and the newly elected Councillors are therefore directly responsible for the unlawful rates invoices that have been delivered to ratepayers. Because those rates invoices are not compliant with the law they do not create a legal liability on ratepayers to pay the rates.

The new Mayor and Councillors may run for cover and argue that the oldest debt first policy is standard practice in the commercial world. But that ignores the fact that the rating process is not a normal commercial transaction. It is the charging of a coercive tax with mandatory statutory rules. Ratepayers have certain statutory rights which a local authority cannot curtail.

They may argue that the policy is imbedded in the computer programme that they use. The simple answer to that is that they should change the computer programme to comply with the law.

The fact that Local Government New Zealand endorses and promotes the policy, and that many local authorities in the country adopt the policy, is irrelevant. The issue is not whether it is commonly accepted practice but whether it is compliant with the law.

Finally, the elected members cannot hide under the skirts of their lawyers who proffer legal opinions justifying the oldest debt first policy. The KDC has for many years been badly served by its lawyers. The legal mess that they are in now is because they have blindly followed legal advice that has proved to be, to be generous, less than adequate,

In the end liability for the KDC’s actions in respect of unlawful rating documents sits squarely on the shoulders of the elected members. To reiterate the comments of the OAG above:

Elected members are ultimately responsible for “getting it right” when it comes to what the local authority does and how it does it. This means that elected members should ask appropriate questions and be satisfied that their local authority has appropriate policies and practices in place.

When Winston Peters gave a speech in Mangawhai last year, Greg Gent asked him why elected members were not held responsible in law for the illegal actions of a local authority, just as company directors were held responsible for the unlawful actions of a company.

He was no doubt referring to the judgment in the Nathan case in which Heath J made it clear that company directors must apply their own judgement in the exercise of their duties rather than simply relying on management and expert advice.

There are of course special provisions In the Local Government Act for the OAG to recover a broad range of losses suffered by the local authority where the elected members are seen to be responsible for those losses. The OAG takes into account whether the individual member protested against the action causing loss, or how the member voted when the formal decision was made. (See section 46 LGA)

Good faith is a defence where the member relied on an expert’s opinion. However, the elected members of the KDC cannot rely on the advice of the KDC’s Chief Executive because it is acknowledged that he had no expertise or experience in local government matters or local government law.

Likewise, the advice received from the KDC’s lawyers over the years has been wanting.

The KDC under Greg Gent has a problem. It clearly has an antipathy towards those who insist that the rule of law should apply in Kaipara. It appears to believe that it has a right to be able to collect rates irrespective of its compliance with the law,

The decision of Duffy J and the report from the OAG signal that such an approach is no longer acceptable. If rating processes and documents are not compliant with the law then ratepayers are not obliged to pay the rates. In such a situation the responsibility for the non-payment of the rates does not lie with the ratepayer but with the elected members who failed to ensure that the rating process were compliant with the law.

Perhaps it is time for the new Council to do a reassessment, rejig its attitudes, and ensure that its actions comply with the law.

WHO IS THE FERRYMAN? 13.04.2017
The Gent council has been strangely silent on the High Court decision of Duffy J which was delivered last year. In that judgment Duffy J made the following findings:

• The KDC acted unlawfully in assessing the rates of the NRC.

• The KDC acted unlawfully in recovering the rates of the NRC. (“Recovering” means recovering unpaid rates of the NRC through approaches to ratepayers’ mortgagees or through legal action of the threat of legal action.)

• The KDC acted unlawfully in adding penalties to the unpaid rates of the NRC.

In addition, Duffy J declared the rates of the NRC for the years 2011/2012 to 2015/2016 to be unlawful.

Presumably the new Gent council has stepped aside from this issue because it comes within the apparent domain of the Crown Manager. The Crown Manager – ex-commissioner Peter Winder - was appointed by the Associate Minister of Local Government to take sole responsibility and make decisions on behalf of the KDC in respect of all matters arising from past rating issues.

The problem is that, in the view of Legal Eagle, both the appointment of the Crown Manager and the powers granted to the Crown Manger were ultra vires. That means that the Minister did not have the power under the Local Government Act or otherwise to appoint the Crown Manager in the way that he was appointed, or to grant him the powers that were purportedly granted.

Legal Eagle sent his legal submissions to the Minister and Associate Minister last year but has yet to receive a response.

The issue is hugely important and urgent. The High Court judicial review is still proceeding. Duffy J has only given an interim judgment and made declarations of unlawfulness but has yet to deliver a final judgment in respect of the relief that will be granted to the MRRA and Bruce and Heather Rogan in respect of the unlawful actions of the NRC and the KDC. Relief relates to the ordering of a refund of unlawful rates.

Lawyers Simpson Grierson are acting for the KDC and the NRC and have appointed David Goddard QC to act as counsel. Through their lawyers the KDC and the NRC have made submissions to the effect that the two councils should not be obliged to refund any unlawful rates because of the administration costs and because the burden would fall on all ratepayers. They sought and were granted an extra day’s hearing to argue their case. This will be in the High Court at Auckland on 30 May 2017)

The big question is this: who is instructing Simpson Grierson on behalf of the KDC?

Presumably it is Peter Winder under his powers as Crown Manager which were granted by the Associate Minister.

But what if those powers are in fact ultra vires, as argued? That means that the Crown Manager has no legal power to make the decisions that he has made, and in fact his decisions in respect of the judicial review are a nullity. That means that the KDC has not lawfully instructed its lawyers, and Simpson Grierson and David Goddard are acting without the authority of the KDC.

It’s a bit of a legal mess to say the least, with the hearing just over a month away. The KDC’s ferry is drifting towards another legal battle but it is unsure who is at the steering wheel.

APARTHEID NOW ENTRENCHED IN NEW ZEALAND LAW   10.04.2017
Whilst PC4 further submissions and the Annual Plan meetings have been well under the radar in Kaipara, on the national scene most New Zealanders will be completely unaware that apartheid has been entrenched in our legal system with the passing this week of the amendment to the Resource Management Act.

Frank Newman sums up the general feeling towards the RMA:

The RMA is a disgrace. It's a racket for lawyers, self-acclaimed experts on all manner of esoteric concepts, planners, commissioners, judges, and iwi. Many of these racketeers have become rich, at the expense of inflated land and house prices, and consent applicants.

The amendments to the Act tinker with its numerous shortcomings but, more importantly introduce race-based provisions that give unelected iwi representatives the power to make decisons on resource consents based on “cultural” considerations.

It is undisputed that these provisions are the pay-off that Nick Smith, the Minister promoting the Bill, has negotiated for the support of the two Maori Party seats in passing the Bill through Parliament.

Here are various comments

Frank Newman

Stephen Franks

And here

Dr Muriel Newman

And here

And here

NBR

Your NZ

Whale Oil

Barry Soper

Whale Oil

Whale Oil

Whale Oil (Neville Gibson NBR)

Winston Peters

And here

SEE THE FURTHER SUBMISSIONS   08.04.2017
The submission period for further submissions on PC 4 has come to an end.

Those further submissions are now available for viewing on the KDC website. Click Further subs at the top.  Note that there are four pages of them.

The majority of submitters vehemently oppose the inclusion of the Fire Service Code of Practice in the District Plan. Naturally Beca (on behlaf of the Fire Service)and the Far North District Council oppose that view. I have also found one other ratepayer who is pro the tanks but only on the basis that no sections are less than 1000 m2. and that would allow space for tanks.

It will be interesting to see what the KDC does with such a clear message sent by ratepayers.

The biggest hurdle to be faced is that the code of practice in its present form is unlawful.

The Fire Service exceeded its statutory powers by including in its code of practice so-called standards relating to districts that do not have reticulated water. It did not, and does not have the legal power to do that.

It means that those standards have no legal basis whatsoever.

It follows therefore that the adoption of the standards by the KDC was unlawful.

The Fire Service has also set itself up as a consent authority under the RMA so that in considering applications for a resource consent from the KDC the Fire Service (not the KDC) has the power to decide which of its standards must be adhered to.

It is acknowledged in the submissions of Beca on behalf of the Fire Service that some of its standards are not applicable. Which seems to ignore the obvious, that standards are just that. They are standards that apply to all situation. If they may or may not apply then they can scarcely be called standards.

The most nonsensical thing about the so-called standards is that they only apply to new properties. The Fire Service’s statutory obligation to promote fire protection for all properties, not just new ones, has been completely ignored.

TANK DEADLINE  02.04.2017
The deadline for further submissions is 4:30 tomorrow 3 April.

This is the last chance to make you views known and to stop Tank Town becoming a reality 

For those who are finding the process too complicated, a further submission template and guidance can be found under Fire Safety Rules on this website.

Grant Douglas gives his impression below of what Mangawhai might look like in the future if we do not stop the madness.

MANGAWHAI TODAY

MANGAWHAI UNDER TANK REGIME

Some comments from readers

"What a load of bureaucratic nonsense."

"Sorry, but I am not able and have not the time to work through all the regulations".

"Happy to say we have sold our property and getting the Kaipara council out of our lives and feel better for it.a permanent cure for a headache."

"This council of the people is starting to sound like the previous devious mobs .I fear Kaipara is again heading for the courts at taxpayers expense and only hope some common sense will arrive soon."

"Yet another money grab by the Kaipara Council. A spare tank that cannot be used for consumption is yet another enforced cost and waste of money."

TANK TOWN SUBMISSIONS   27.03.2017
The feedback I have been receiving is that the process for making further submissions is simply too complicated for most people,  The information is difficult to find on the KDC website.  Then there are several versions of the former submissions that one has to refer to, with a number given to each submitter and a specifc number for each point made in a submission.

One also has to go through certain hoops just to establish the right to make a submission.

And then there is the obligation to serve notice on all those whose submissions you refer to.

Whatever you do, try to avoid the template offered on the KDC website.  It is confusing and prompts one to put in the answer that they are seeking.  In some places I was confused as to what they wanted.

I have therefore prepared a standard response for those who are opposed to the Tank Town provisions.  It can be found here.  All you need to do is:

  • Download it in Word. It does download despite all the warnings. (If there are problems then please email me and I can send it as an attachment.)

  • Then put in your personal details in the spaces highlighted in yellow, remove the yellow highlight and delete the options that are not applicable.

  • Change the name of the document into your own name.

  • Email it to the KDC: planchanges@kaipara.govt.nz  and copy it (CC) to all the email addresses of the earlier submitters that are listed at the very end of the document.  You should be able to cut and paste.

You can ask to be heard at the formal hearing of submissions, or you can indicate that you may join a joint case presented by others.

The deadline for submissions is 4:30 pm on Monday 03 April 2017.

The only way we can get rid of the dedicated firefighting tanks requirement is if hundreds of us make our views known to the Councillors.  This is our last opportunity to do something positive about an issue that is upsetting many of us and which will turn Mangawhai and other settlements into tank towns.

The risk of fire has to be appreciated, but the chance of a fire occurring is once in 600 years or so.   If we all adopted the same draconian approach as the Fire Service we would all go round wrapped up in cotton wool and wearing body armour and crash helmets.

Make sure your partners make separate submissions, and get on to your friends, neighbours, relatives and work mates.  If you use the local Facebook pages then please post links to this site and get things moving.

if you have any difficulties you can email me on cliveboonham@gmail.com

TANK TOWN   19.03.2017
As mentioned in TANK TOWN LATEST  16.03.2017 (scroll down), the KDC has decided to steam-roller ahead with Plan Change 4 (PC4) rather than heed the voices of ratepayers and withdraw it. Most ratepayers want PC4 to be withdrawn and a new proposal to delete all references to the Fire Services Code of Practice.

PC4 has now been opened up to further submissions (as required by the RMA) and I encourage everyone to make a further submission. Councillors are swayed by public opinion and we need to make it absolutely clear to our Councillors that we do not want their water tanks.

This is an important issue for the future of Kaipara and especially for Mangawhai.  It is your LAST CHANCE  to stop the Tank Town nonsense.  Alert all your friends to what is going on and make sure that you ALL make a submission.  (Details to be provided next week.)

Current situation
Most people are unaware of the status of the requirement for new houses to provide a dedicated water tank for firefighting. Many believe that is all done and dusted. Far from it. The matter has still to be resolved.

The previous Tiller Council adopted the Code of Practice in the District Plan holus bolus. There was no consideration as to whether there was an existing problem or whether the Fire Service rules would address any such problem, if one existed. No assessment was carried out of the incidence in the district of dwellings and other buildings being lost to fire as a result of inadequate onsite firefighting water supplies.

The rules required a dedicated 45,000 litre water tank for firefighting for a new house, and a 20 metre set back from a house for trees and shrubs. They also required a concrete driveway, turning circle and hardstand to be situated on the property to accommodate a 20 tonne fire appliance - the likes of which have never been seen in Kaipara..

The KDC informally reduced the tank requirement to 10,000 litres (if the NZFS gave its approval) and a resource consent was obtained on the payment of a $1,000 fee.

Following numerous complaints from ratepayers and builders, Plan Change 2 (PC2) was introduced last year to formally reduce the tank size to 10,000 litres (without having to obtain a resource consent} but the other standards of the Code of Practice remained untouched.

The New Zealand Fire Service objected to the reduction in tank size. Plan Change 2 was not supported by the majority of submitters who requested among other matters that Council not adopt the proposal and reconsider the whole matter of including Fire Safety Rules in the District Plan as a new proposal.

Rather than responding to the overwhelming clamour for a total rethink, the commissioners introduced Plan Change 4 (PC4) which reduced the size of tank to 10,000 litres, got rid of the setback of 20 metres for trees and shrubs in urban areas, and made modifications to other rules in the plan.

The problem is that the PC4 is fixated on compliance with the Code of Practice and the size of tanks, rather than looking at the risk factors, cost analysis and asking objectively how the risk of fire can be best managed in non-reticulated areas.

The new Council (elected in October last year) has to some extent inherited the bad decisions of the former council and the commissioners. But it could have been proactive. The submissions on the PC4 (November last year) were overwhelmingly in favour of the PC4 being rejected and a new plan change being introduced removing all references to the Code of Practice. The sensible thing would have been to withdraw the PC4, as the KDC did with PC2, and propose a new plan change that considers mitigating fire risk and firefighting methods without being hamstrung by blind adherence to the Code of Practice.

The new Council is now going through the statutory process for PC4 by asking for further submissions, but it has given no indication where it stands on the issue.

Is it going to listen to ratepayers, reject SC4, and start again and do it properly? Or is it going to submit to the pressure from the Fire Service and steam-roller PC4 through against the wishes of the community?

Legality of KDC’s actions
There are serious allegations that the KDC failed to comply with its statutory obligations in adopting the Code of Practice. Likewise, the KDC failed to comply with the RMA in respect of the consultation process in respect of PC2 and PC4.

Legality of the Code of Practice
There is legal dispute as to whether NZFS Code of Practice is permitted by law to include standards that do not relate to water mains. Section 30 of the Fire Services Act is so badly drafted that it suggests that the Code is limited to water mains only in urban areas. That means that the Fire Service cannot include any recommendations in the Code on situations where there are no water mains.

Resolving that issue may be superfluous. The current legislation, the Fire Services Act 1975, is being replaced by the Fire and Emergency New Zealand Bill once it is enacted later this year. The Bill has had its second reading in the House and is now in the committee stage. It should take effect later this year.

The new legislation provides for a code of practice that unambiguously covers all water supplies, whether mains or other sources. The Government Administration Committee considered the draft of the Bill and, in an acknowledgement of the ambiguity of the current legislation, recommended amending clause 6 (Interpretation) to add a definition of “firefighting water supplies”. It stated: “This definition would include both reticulated water supply systems and tank supplies. This amendment would make it clearer which water supplies the code of practice would apply to”.

That will resolve the legality issue once and for all.

But other issues remain

Council has never considered the issues
The KDC has never considered the fundamental issues. Is there a problem? What are the levels of risk of a fire occurring? What steps should be taken to mitigate the risk taking into account the potential risk, the costs, the practicability, and the effect on the environment and amenity values of the district.

Jonathan Larsen, now Councillors Larsen is a professional fireman. He has calculated that on the basis of historic fires in the Mangawhai area one building would be expected to be damaged in some way by a fire once every 625 to 833 years. And, if you have to wait 800 years for a fire to occur at your property, is a dedicated 10,000 water tank going to be relevant?

Cost of changes to the District Plan
If a specific code of practice is referred to in the District Plan then each time the code is changed the district plan has to be changed. Changing a district plan is tortuous and expensive. There are no set time limits under the Fires Services Act for reviewing a code of practice but under the proposed legislation a new code must be published to replace the existing code. The code must be reviewed each three years.

If PC 4 is adopted by the KDC it will have to do another plan change next year when the new code is published, and each three years after that.

Non-mandatory
The new Bill, like the Fire Services Act, does not make the adoption of the code of practice mandatory.

It is also noteworthy that PC4 rejects several of the standards in the Code. For instance the requirement for a 45,000 litre tank has been modified.  The 20 metre setback from trees or shrubs is regarded as “unnecessary and onerous” in the urban setting and has been removed. Several of the other standards have already been rejected.

It is also relevant that In respect of the neighbouring local authorities, the Far North, Whangarei District Councils and Auckland Council (in the Rodney Plan) do not make a direct reference to the Code of Practice in their Plan.

Access to tanks
On small sections any tank dedicated to firefighting must necessarily be close to the house itself and the seat of the fire. It is likely that it will inaccessible in a fire.

Special Coupling
The Fire Service originally insisted on access to the firefighting tank being by way of a special coupling so that only the fire brigade could access it.  In other words, where there was a fire the house owner would be unable to use the dedicated firefighting tank water while waiting for the fire brigade to arrive.

The Fire Service has now conceded that a house owner may access the water in the tank through a separate connection but only to fight a fire. It is unsure how the Fire Service intends to police that requirement. In the recent drought it is likely that all dedicated firefighting tanks would have been raided by their owners.

Reliance on water tanks
There is no evidence to suggest that the lack of tank water has been an issue in any fire in the district. Rural properties may not be able to draw on neighbours’ supplies, but is likely that the house will have burned down long before the fire brigade arrives. In settlements like Mangawhai there will nearly always be an adequate water supply for firefighting from the domestic tank on the property or alternatively from neighbours’ tanks. My own property in Mangawhai has six 45,000 litre tanks within 30 metres of the property. That is my own and five tanks of four neighbours. Is adding five more tanks going to make any difference given the minimal risk of fire?

Water tankers
The Mangawhai fire truck carries a limited supply of water. The brigade also has a water tanker that accompanies the fire truck. Surely that is the solution to the problem. Having water at the fire scene, but having no firemen and their equipment to use it is pointless. It makes sense therefore for the brigade to take with it as much water as it can, and then rely on domestic tank supplies for the balance, if they are needed.

Such a solution is simple and effective. It is cheap and it has no detrimental effect on the environment. Coupled with educational programmes for reducing fire risk it would be a reasonable response to the actual risk of fire.

However, the most important thing is that, unlike the standards of the Fire Service for non-mains areas, it allows the fire brigade access to water to fight fires in all buildings irrespective of whether they are new or old.

The cost of providing water tankers is minimal compared to the cost and amenity detriment of a proliferation of tanks that will never be used. Finance could come from the Fire Service levy on insurance or a special targeted rate on all properties for a few dollars a year.

Summary
Despite what the Fire Service claims, the present Code of Practice only relates to urban areas where there are water mains. It sets standards for the supply and pressure of water in the water mains. In respect of areas where there are no water mains, the Code of Practice purports to include standards but, and this is a big but, those standards are for new houses only. The standards in the Code relate only to the regulatory process for subdividing and building new houses, but there are no provisions for existing houses.

That is completely illogical. Existing houses are equally at risk from fire as new houses. It is as absurd as suggesting that only those born after a certain debt should be obliged to wear seat belts in cars.

If the KDC is serious about mitigating the risk of fire and providing standards for fighting fire when it does occur, then it need to break away from the shackles and short-sightedness of the Code of Practice. It needs to look at the degree of risk, the options for mitigating the risk, and the cost and acceptability of doing so.

It also needs to listen to its communities.

References
The section 32 evaluation provided for PC4 covers all aspects of the issue and is worth a read.

The submissions on PC4 have now been published on the KDC website. (The submission of Jonathan Larsen at page 91 is excellent.)  There is also a summary of submissions.

FURTHER SUBMISSIONS PROCESS    19.03.2017
Full details of the “further submissions” process have now emerged. 

The further submission period is 17 March to 4:30 pm on Monday 3 April.

But wait there’s some catches.

Catch 1
Only certain people can make submissions. According to the RMA the KDC can make further submissions as of right.  But ratepayers can only make further submissions if they meet the following criteria:

• Any person representing a relevant aspect of the public interest

• Any person that has an interest greater than the interest that the general public has

The problem is the KDC requires such persons to prove that they come within the one of the two categories and the KDC can reject the submission if it considers the criteria is not met.

Catch 2
You cannot make submissions on a new issue. You either have to support or oppose a submission already made.

Full details of all submissions previously made are on the KDC website.

Catch 3
The further submission process is a nightmare. The submission has to be in the format stipulated, and must make accurate references to the submissions being supported or opposed. It then has to be served (by email) on the KDC and on the original submitter. Email addresses of the original submitters are provided by the KDC.

Next week I will be offering more guidance on how to complete the further submissions form and the basis on which all ratepayers can make submissions

TANK TOWN LATEST     16.03.2017
What a load of bureaucratic nonsense.

Mangawhai is furious about the ludicrous Fire Service rules that were incorporated into the KDC District Plan that are turning magical Mangawhai into a tank town.  Last year Proposed Plan Change 2 was rejected by submitters. Then Proposed Plan Change 4 was rejected. Most submitters wanted the Fire Service Rules to be completely deleted from the District Plan on the basis that they served no point, destroyed the natural amenities of the district, and were incredibly expensive.

Most saw it as a kow-towing to Wellington bureaucrats and a ticket clipping scheme for the KDC.

Coincidentally with my recent article (see below) the KDC has now made its move. It has advised submitters to the Plan Change 4 proposal that they may make further submissions but only in support or opposition of a submission previously made. A Public Notice will appear in the local rags in the next few days. The further consultation period is for two weeks only

So, instead of listening to the people and getting rid of the rules altogether, Greg Gent and his council have decided that they intend to push through the proposal despite the fact that it is totally unnecessary and is unwanted by the ratepayers of the district.

Firefighting is an important issue but we have to be balanced in our approach. Wearing crash helmets and body armour in cars would reduce injuries from car crashes. Banning people from swimming in the sea would reduce drownings. But would a proliferation of dedicated water tanks do anything to save lives and properties from fire?

The rules only apply to new properties (which are likely to have an ample provision for household water). So what about the risk to existing properties? Or is there a risk?  If there were a fire at my place then there are five 45,000 litre tanks within 20 metres of my property. Sure, they may not be completely full, and might have been pretty low a couple of weeks ago, but the chance are they will have sufficient water to fight a fire. After all, the new proposed amount for a dedicated tank is 10,000 litres.

One of the ludicrous requirements of the Fire Service was that each dedicated water tank had to have a special coupling so that it could only be accessed by the Fire Service. So you could have all that dedicated firefighting water but not be able to use it yourself to fight the fire while waiting for the Fire Service.

Acknowledging the stupidity of such a requirement, the Fire Service now states that it will allow normal access to the tank for the house owner in addition to the Fire Service coupling. But the Fire Service is adamant that the water in the tank is not to be used for household use. Really? And how is the Fire Service going to police that? In the recent drought would there be one house owner who would not have drawn from the dedicated firefighting tank to access drinking water and to enable them to flush their toilets?

If the KDC was really serious about getting to the bottom of this it should promote the importance of keeping water tanks topped up. For its part the Fire Service should ensure that a tanker with an adequate supply of water accompanies each fire truck called out to a fire. That happens now. But it should be the principal means of ensuring an adequate supply of water.

Ratepayers would be happy to pay a special rate of $10 per year which should cover the tanker costs. Better than having to endure a proliferation of tanks, at great expense, for no benefit, and having Magical Mangawhai turned into a tank town.

The irony of it all is that the provisions of the Code of Practice adopted by the KDC in its District Plan are completely unlawful. The Code of Practice can only relate to the supply and pressure of water mains. Anything else is outside the legal power of the National Commander.(See post below)

Look out for the public notices. If we are going to stop this tank nonsense we must make our voices heard. If we don’t they will trample all over us.

FIRE SERVICE RULES AND WATER TANKS   12.03.2017
A ratepayer who is being compelled by the KDC to install a dedicated 45,000 litre tank to meet the Fire Service rules in the District Plan has asked me what has happened to the proposal to reduce the tank size to 10,000 litres without the need for a resource consent.

Good question. What did happen to all the submissions that we made on the Proposed Plan Change 4 last November?

In short, nothing.

In fact the submissions can be seen here.  And they are worth a read.  There is far more common sense in the submissions from ordinary ratepayers than can be found in the approach of the KDC with all its consultants and advisers.

As a result of the overwhelming opposition from ratepayers, Proposed Plan Change 4 has ground to a halt.  But beyond that nothing more has been done.

The main provision in Proposed Change 4 was to reduce the dedicated firefighting tank size from 45,000 litres to 10,000 litres. But most of the submissions suggested deleting the Fire Rules from the District Plan completely on the basis that the requirement of concrete tanks in front of every property is an affront to the principles behind the District Plan and the RMA. Then there is the ludicrous requirement that all shrubs and trees within 20 metres of a house have to be removed. That did not go down too well.

The other problem is that the KDC did not comply with the RMA in the consultation process.

But the elephant in the room is the fact that there is no evidence to support the proposition that complying with the Fire Service Code of Practice will reduce the damage or injury/death caused by fire. The rules serve no purpose.

In its obsequiousness to Wellington the KDC failed to face up to that fundamental issue.

The tragedy is that whilst the new Council twiddles its thumbs on this matter, the KDC is still requiring 45,000 litre tanks to be installed.

The other elephant in the room (we could start a zoo) is the big question-mark hanging over the legality of the part of the Fire Service’s Code of Practice which has been incorporated into our District Plan.

Here’s some legal analysis for those who are interested,

The New Zealand Fire Service Commission is a statutory body set up by the Fire Service Act 1975 and its powers are defined by that Act.

The functions of the Commission are set out in the Act. Under section 14(b) the Commission has the "general control, within the framework of this Act, of the Fire Service and the functions and activities of the Fire Service”.

The command and operation of the Fire Service is delegated to the National Commander who exercises all the powers and functions of the Commission. (Section 23)

We then get to the part of the Act that relates to the Kaipara issue. It deals, as the heading shows, solely with the powers of the National Commander in respect of water mains.

30 Use of water in mains for fire protection, fire fighting, and hazardous substance emergency purposes

The powers of the National Commander in respect of water mains are set out in s 30(2):

(2) The National Commander may from time to time cause to be made such checks as the National Commander considers necessary ……..etc

We are now getting to the important part in subsection (3)

(3) In carrying out its duties pursuant to subsection (2) the National Commander shall publish a Code of Practice specifying standards for water supply volume and pressure which are required. This Code of Practice shall be notified by the National Commander in the Gazette. [Emphasis added]

And that is it. Read it again. And again.   “…the National Commander shall publish a Code of Practice specifying standards for water supply volume and pressure which are required.

In other words the Code of Practice only includes the standards relating to water mains.

However, what the Fire Service has done is to sneak into the Code of Practice matters that are totally outside the statutory ambit of the document. That is, recommendations in respect of firefighting where there are no water mains.

The Fire Service will argue, with feigned innocence, that they are merely “recommendations” and not technically part of the Code of Practice. Therefore they are not mandatory.

That is rubbish. The Fire Service in Wellington pressures weak-kneed local authorities into including Its “recommendations” in their district plans so that they becomes fully binding on all ratepayers. That is what they did to Kaipara.

Ratepayers are then compelled to comply with the new rules, at great cost to themselves, and at huge detriment to the amenity value of their properties.

If someone wants to reduce the draconian effect of the rules they may apply to the Fires Service to reduce its “recommendations” (to allow a smaller water tank) and then pay a sweet thousand dollars to get the tick from the KDC.

The KDC in all of its reports acknowledges that the recommendations are not mandatory. But it also knows that once they are in the District Plan then they become binding.

Now here’s the rub.

What the KDC does not realise is that the recommendations In the Code of Practice are completely unlawful. The National Commander only has the powers and functions set out in the Fire Service Act. The Act is quite clear that the National Commander onely has the power to publish a Code of Practice that relates to standards for water mains. And that is it. He has no legal power to issue recommendations in the Code of Practice in respect of firefighting where there are no water mains.

His actions in including the recommendations in the Code of Practice are outside the National Commander’s statutory powers. That means that they are ultra vires, as lawyers call it. The result in law is that recommendations are a complete nullity and have no legal effect. It is as if they did not exist.

All sorts of legal consequences arise. Was the KDC acting unlawfully when it adopted unlawful recommendations? Is that part of the District Plan ultra vires? And was the KDC acting unlawfully in compelling builders to install firefighting tanks in compliance with unlawful rules in the District Plan? Could those forced to install tanks seek reimbursement from the KDC?

What is needed now is strong action from Greg Gent’s Council to resolve this issue once and for all. They cannot let it drift on and continue to force developers and home builders into installing tanks at a ludicrous cost and to the detriment to the environment.  Especially when the Council itself in its Section 32 Evaluation report questions the wisdom and necessity of such rules, and when the KDC will readily reduce the water tank size to 10,000 litres on the payment of a "sweetner".

The Council  needs to examine, with its lawyers, the legal status of the Code of Practice “recommendations”. And if it is accepted that they are unlawful, then the Council needs to ascertain the legal consequences of its actions and front up to ratepayers.

But it needs to act quickly and make some big decisions. Ratepayers are being seriously disadvantaged by the delay.

All the background information on Proposed Plan Change 4 can be see on the KDC website here.

Mangawhai - KDC's vision of the future?

WATER ISSUE 1  12.03.2017
The story goes that Big Business plunders local authorities and their ratepayers by exerting pressure to install sewerage systems and reticulated water systems so they can rip off ratepayers in the construction process, and then build an empire of fat bureaucrats to feed off the rating system in administering the system  Auckland's Watercare comes to mind.

We have already been rorted over the Mangawhai sewerage system and sceptics say that a reticulated water system for Mangawhai is the next rort waiting in the wings. Rumour has it that the fiasco over the Fire Service water tanks is part of the subterfuge to impose a reticulated water system on ratepayers.

Just a rumour? Take a look at the report from Opus commissioned by the KDC in April 2016 on the options and cost of providing a  water supply in Mangawhai. One of the options is a reticulated network to cover the Village and the Heads at an estimated cost of $24 million. Water would come from the Maungaturoto dam and would be piped to Mangawhai.

No doubt the recent drought and the shortage of water will be used be used to push the proposal..

WATER ISSUE 2   12.03.2017
In WATER PROBLEMS IN MANGAWHAI 23.01.2017 (below) I advised that the KDC was spending $275.000 of ratepayers’ money to upgrade the Mangawhai Heads reticulated water supply. The commissioners budgeted only $30,000.

It appears that the reticulated supply services only 17 connections (or possibly 18). It is in effect a private water supply but paid for by ratepayers. The upgrade cost works out at $15,277,78 per connection.

And what is the upgrade for? Ratepayers have not been advised.

More transparency from the new “good governance” Council would be appreciated.

See: the report on the upgrade funding at page 353

The reticulation plan is at page 4

WATER ISSUE 3  12.03.2017
The Mangawhai Focus reports that the NRC has completed its testing of the quality of the water at major swimming spots in Northland. The results are available on the Lawa site here.

The two swimming spots tested – the surf beach and the camp in the estuary - were both deemed “low risk”.

That’s all good. But ,,,,,,where are the results of the testing carried out by the KDC late last year. Christian Simon in the Focus' Letters to the Editor asks some very pertinent questions.

A bylaw introducing a warrant of fitness regime was introduced last year by the KDC for private sewerage systems solely on the basis of “well documented evidence” that the harbour was polluted and that private systems were the cause.

There was, in fact, no evidence at all from the past, and it seems there is no current evidence.

Please, Councillors, let us have the facts.

UNFAIR TO WASTEWATER PANEL?   31.01.2017
A reader has been suggested that I have been unfair on the Mangawhai wastewater panel, and that the panel did its best to come up with a solution to the problems that we face with our wastewater.

The problem is that many of us have no confidence in anything that was done by the commissioners. They were appointed by the government through the agency of Greg Gent, now our mayor, who was instrumental in getting them appointed to ensure that that the loans to the BNZ and ANZ were protected from the Armageddon that he felt would ensue if the KDC went under.

The upshot was that the commissioners were given the task of ensuring that ratepayers were obliged to pay the debts to the BNZ and the ANZ to finance the EcoCare Scheme that the High Court declared to be unlawful.

We all know how the commissioners manipulated the situation, with the help of Parliament, the OAG, and some bizarre and questionable decisions from the judiciary. Together they stitched up the ratepayers of Kaipara and allowed the guilty parties to escape without any liability.

Big question marks hang over the EcoCare scheme and the plant that we have paid so handsomely for. For years ratepayers have needed some very blunt answers to someone very relevant questions, but the commissioners have ducked and dived for years.

The appointment of the watewater advisory panel was an example. What we wanted was some independent assessment of the plant, its capacity, its condition, and an honest assessment of the disposal farm and the reticulation system.

Note that we paid around $60 million for a system that Beca promised would give us 4,500 connections. It has nowhere near that capacity. At the last count, a year ago, it was under 2,000 connections and no one will reveal how many more it will take. Will it reach the promised 4,500?

Comparison:

The new Whanganui sewerage system announced last year is to cost $39 million including the cost of the disposal process and the land for discharge. Whanganui has a population of about 42,000.

The new Whanganui sewerage system is to replace the prior one which turned out to be a lemon. An out-of-court settlement had been reached with the developer of the failed system)

The purchase of the disposal field and the price paid raised many eyebrows around Mangawhai and it is still plagued by doubts. The farm cannot be used as a dairy farm because the discharge from the sewerage plant breaches Fonterra rules. Yet the discharge must inevitably find its way onto neighbouring farms which are contracted to Fonterra.

Is that an issue? Cold hard facts would go a long way to dispelling doubts.

As I understand it the wastewater committee was appointed to advise on options for the future because the disposal options at the farm were limited. I recall that they were looking at upgrading the treatment and disposing it via a pipe-line out to sea, or discharging it into the Mangawhai Harbour, or reverting to the old idea of discharging it onto the golf course.

I don’t know what happened but it now appears that all of the new options have fallen by the wayside and it's back to the farm.

The thing about the wastewater panel was that they had no experience in these matters. They were advised by Harrison Grierson (who do have experience) and on the basis of what they learned they were supposed to advise the commissioners. I struggle to understand why the commissioners did not simply get advice from the experts directly.

All in all, it seems to me that the whole process did not answer any questions about the quality of the plant or its structure or the viability of the disposal farm. We appear to be drifting along on an ad hoc basis in the hope that it all works out and the big decisions will have to be delayed. It’s a bit like the John Key School of Thinking: spin out the feel good platitudes and ignore the deferred problems.

The reticulation network has raised all sorts of questions. Who pays for it? The EcoCare debt is allocated so that future connections bear $26.2 million of the current debt and only a portion of the interest on that amount is funded. The rest of the interest is capitalised. The idea was that the development contributions from future users were to be used to meet this debt. But the problem is that development contributions cannot be used for past debt, only for new infrastructure. Not only that, the development contributions are needed to pay for the extensive reticulation needed to connect to the plant, and to pay for extension of the disposal fields.

So where does that leave the $26.2 million?

The only thing to come out of the panel was the septic tank bylaw that was based on supposed evidence of pollution and evidence of the culprit.  "The well-documented evidence" did not exist. John Robertson made a mockery of it all by announcing that "surprisingly" the waters of the Mangawhai harbour had never been properly assessed. The panel sprang into action with photos of Peter Wethey – before his election to the KDC - testing waters here and there. But there have been no results. (See the previous article.)

And to cap it all, we read in the NZ Herald today that of 928 spots tested between 2009 and 2013 for E.coli showed that all urban sites exceeded the minimum acceptable state for “primary contact” like swimming.

It appears that when it comes to water quality Mangawhai and the whole of New Zealand is living in a dream world where there are not facts except those that are made up.

The new Council would do a great service to the people of Kaipara, and in particular Mangawhai, by facing up to these issues and giving ratepayers the cold hard facts.

We have been through and incompetence and spin of the Tiller/McKerchar regime, the smoke and mirrors of Honest John and his cohorts.

If Greg Gent and his Council are going to win ratepayers over then they are going to have to tackle these issues fairly and squarely. Honesty will go a long way.

WATER PROBLEMS AND "ALTERNATIVE FACTS"    27.01.2017
The Trump Presidency has already given us the expression “alternative facts”. But make no mistake about it, alternative facts are alive and kicking in New Zealand.

Especially when it comes to water pollution.

A few days ago the NZ Herald headlined that experts had been stunned by the toxic water readings in Auckland Harbour.

Really?

The figures have been available for years. Ten of the beaches in Auckland are so polluted that the Auckland Council put up permanent signs banning swimming. The Council no longer bothers to test the water.

One million cubic metres of wastewater and raw sewage is pouring into the harbour each year from 41 points around the inner city suburbs.

There is nothing new in this. It was just that the Council did not want it publicised, and the Herald was more than happy to ignore the facts and support John Key’s propaganda about clean-green New Zealand and how attractive it was to foreigners.

It is quite bizarre how Auckland City was vaunted just a few months ago by Key as "one of the the most liveable cities in the world", is now been exposed as being one of the most unliveable, with impossible house prices, seriously neglected and inadequate infrastructure and polluted beaches. And that’s just for starters.

Nothing has changed, it was just that the glaring facts were conveniently being ignored.

We know all about this in Mangawhai. The EcoCare sewerage scheme was promoted on the basis that it would stop pollution of the Mangawhai Harbour. There was absolutely no solid evidence to support this but the feel-good "eco-care" spin disguised the clear intention to rort the natives.

And then last year the commissioners and their anointed panel used the same argument to support the introduction of a bylaw and WOF for private sewerage systems. According to the panel there was "well-documented evidence" to establish that private sewerage systems were responsible for the pollution of the Harbour. An Official Information request established that there was no evidence of pollution because no testing had been done, and the casting of the blame on private systems had no basis whatsoever.

As always, the probability of bovine pollution was not even considered.

Having reached a conclusion on “alternative facts”, the panel then undertook tests, no doubt on which they could retrospectively base their conclusions. But that was months ago. Where are the test results?

This is what Christian Simon says in his letter to the editor in the latest edition of the Mangawhai Focus:

For months I am waiting for the Mangawhai harbour water testing results. But we get absolutely no information, not about nitrogen, not about E. coli. All the information Kaipara District Council (KDC) and their Harbour Health Advisory Panel release is that “the results need further interpretation and more targeted testing”.

Just how long does it take to establish that water is polluted? Or could it be that the results do not sit comfortably alongside the conclusions that have already been acted upon?

It is important that we give the newly elected Council a fair go but it is also equally important that it does not uncritically endorse the smoke and mirrors and spin that accompanied virtually every decision of the commissioners.

This is the time for the truth, the real facts. We are not interested in alternative facts.

See also:  Brian Rudman's City residents kicking up a stink

WATER PROBLEMS IN MANGAWHAI    23.01.2017
The drought, and the shortage of water, has raised some interesting issues in Mangawhai. Some ratbags are stealing water and others see that this as an opportunity for the KDC to impose an Auckland-style Watercare behemoth on the ratepayers of Mangawhai. They rorted the people with the sewerage system so why not do the same with the water?

Mangawhai already has a Council-owned water service in Mangawhai. Just to recap on earlier articles, the Mangawhai water treatment plant services only the Wood Street shops and public toilets and the Council-owned campsite. It is effectively a service for commercial operations.

Such an enterprise should be strictly user pays, with those using and benefiting from the service paying for its costs and capital expenses. However, it appears, and I stand to be corrected, that it is funded by all ratepayers across the district out of general rates.

The commissioners budgeted for $30,000 capital expenditure for the service for the 2016/2017 year. However the new Council advises in a report on the matter (at page 353) that it has now revised the budget to upgrade the system to $275,000. That is 900 per cent more than the commissioners budgeted.

The sad thing is that the new Council, with all its bowing and curtseying to good governance, has made no comment on how such a mistake could have happened. It simply glosses over the massive increase.

Many might think that it is because the new Council does not wish to criticise any actions of the commissioners by offering any negative comments, especially when two of the commissioners are still on board with very influential positions, and the Associate Minister of Local Government is effectively running the KDC.

It could be that the situation has changed and new problems have arisen which require extra expenditure. If that is the case, surely ratepayers should be kept abreast of the situation, especially as they are effectively funding a private water service.

The report refers to the sale of the property at 250 Molesworth Drive for $380,000. This property is one of those held on behalf of ratepayers in the Mangawhai Endowment Fund, which the Council now calls the Mangawhai Endowment Lands Account (MELA). Despite the fact that any sales of Endowment Land are required by law to be paid into the Endowment Account, the KDC report mentioned above recommended that $205,000 of the proceeds of sale should be used to fund part of the capital costs of the Mangawhai water supply.

It appears from the unconfirmed minutes of the December meeting of the Council that this was rejected, and the all the proceeds of sale are to be paid into the MELA account.

From the point of view of the ratepayer that was an excellent result. It was in compliance with the Mangawai (sic) Empowerment Lands Act 1966 and it was a sensible decision. But the question lingers as to why the Council report recommended using Endowment monies for such a matter, and why the Council was inclined to make that decision without reference to the MELA committee that is supposed to make such decisions on the allocation of funds.

We also need to remember that the MELA fund is a fiction. It does not exist. The OAG in its report on the Kaipara debacle reported that all the monies in the Fund had disappeared without any paper trail during the heady days of McKerchar and Tiller. The Fund is now a mere fiction that was perpetuated by the commissioners and no doubt will receive the same treatment from the new Council.

Footnote: For those interested, whilst the Auditor-General could not find any paper trail for the missiong Endowment Fund, and although she highlights on her website that such a failure was a prime indication of corruption, she never pursued the matter any further.  She even prevented the SFO from enquiring into any aspect of the Kaipara debacle.  To cap it all off she found in her final report that there was no evidence of corruption in Kaipara. 

Note also the article immediately below which considers the statement from Lyn Provost that in 7 years at the helm of the OAG she never found any corruption in New Zealand.  And yet the High Court filled 200 pages with reasons why there was corruption in Rodney at the time that the OAG was the auditor for Rodney.

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