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SPIN, SPIN AND MORE SPIN   02/08/2020
If you have read the Mayor’s message accompanying your latest rate demand you may have felt a little nauseous, and especially so when you saw how much your rates are increasing.

From the tone and contents of the letter Mayor Smith appears to live in a parallel universe where all is light and sunshine and the magnificently performing KDC is his personal gift to the people of Mangawhai. 

Fresh from publicly rewriting history about the KDC’s legal actions against Bruce and Heather Rogan and hundreds of other ratepayers  (See DIRTY TRICKS FROM KDC post below) he is now pulling out every bit of spin to justify the rates increase and other actions of his council.

He claims that there is no "budget hole" to fill but chooses to ignore the massive debt incurred to finance the Mangawhai wastewater plant.  According to the 2018/2028 LTP Part 1 at page 34 it will take 40 years from 2012 to repay that original debt of $58 million. In addition the LTP Part 1 at page 57 provides for $20.05 million of new debt to fund the extensions and upgrades to the plant over the next 10 years.  However several sources state that the current plant will have reached its capacity by 2026 or 2027 and a completely new plant will be needed.  And that is without taking into account the demands of Mangawhai Central.

No budget hole?  More like a massive crater.

Mayor Smith's justification for the rates increase is the KDC’s “chequered past for its road network”.  He suggests that the rates increase was needed for the roads:.

Any rates increase less than 3.97 % would certainly have meant worse roads for Kaipara people.

And yet just a week or so ago, at an open day for the press at the Mangawhai wastewater plant, Mayor Smith said that the rates increase would be spent elsewhere. In respect of the need to upgrade the plant’s pump network, the Mahurangi Matters reported Mayor Smith as follows:

Kaipara Mayor Dr Jason Smith said the upgrades would be funded by the recently announced 3.97 per cent rates increase.

That same rates increase is probably also being used to fund the consultants on the Mangawhai Community Plan, the consultants on the Spatial Plan, and the two new sets of consultants preparing new Urban Design Guides for Kaipara. (The latter two projects will be overtaken by proposed changes to the legislation.  (See MANGAWHAI SPATIAL PLAN below.)

As leader of the KDC Mayor Smith appears to have no understanding of the changed world post Covid 19.  Many in our communities are really suffering financially, and that applies to those considered “wealthy” as well as those on lower incomes.  Covid 19 has destroyed many businesses and jobs and we still have no idea how much worse it is going to get

The last thing we need is a gung ho Mayor celebrating a rates increase, the smart new technology of the KDC, and suggesting that everything is “bright and new” when the communities of Kaipara are suffering the biggest economic blow they have ever encountered.

Mayor Smith’s attempt to put a spin on the current financial crisis facing the people of Kaipara is insensitive and completely inappropriate.  It shows that he is completely out of touch with the people of the district.

THE FLAW OF AVERAGES  02.08.2020
Mayor Smith says the "average" rates increase is 3.97 per cent.  Yeah, right.  We know what that means.  Houses in Mangawhai will incur much higher than average rates; and those in the west of the district a much lower increase, or even a decrease.  It is the flaw of averages:


The drowning man represents Mangawhai ratepayers

ELECTED MEMBERS VOTING ON RATES INCREASE    02.08,2929
When the next election comes around we need to remember which of the elected members voted for the increased rates.  At the April meeting of the KDC Councillors Larsen, Vincent and Wills voted to reduce the proposed 3.97 per cent increase to a
2.83 per cent increase, but were outvoted by the other elected members.  All the elected members then voted for a 3.97 per cent increase, with the exception of Councillor Larsen who voted against it .  

MANGAWHAI SPATIAL PLAN   31.07,2020
The community has the opportunity to give feedback on the draft Mangawhai Spatial Plan.  The deadline is 9 August 2020.

The Spatial Plan is a non-statutory document that sets the agenda and direction for a review of the KDC District Plan.  The District Plan is a set of rules that tells you what you can’t do, or have to do, when developing land.  It was introduced to protect the environment pursuant to the Resource Management Act (RMA}. 

There are two important issues arising from the draft Spatial Plan.

First the uncertain future for district plans and, in fact, for local authorities themselves as they exist at present.

Sadly the RMA and district plans throughout the country have become cash-cows and have allowed local authorities to gouge money out of those wanting to build or develop land.  It is one of the biggest rorts in local government.

I am not alone in thinking that.  Both major parties have called for a review of the RMA and a simplification of the rules so that building and developing become "can-do" activities rather than a "can’t do" set of hurdles.  The RMA has been called a “legislative cockroach”

Infrastructure Minister and NZ First MP Shane Jones says the RMA had become "calcified".

"It keeps battalions of lawyers and planners and various other busy bodies hired by local government engaged in activity that's inversely related to economic growth.

It has always struck me as ludicrous that every local authority has to have its own district plan.  A property a few hundred yards up Cove Road from the Mangawhai Heads Road junction is in Whangarei district and has a different set of rules to comply with compared with its neighbouring property in Kaipara district.

District plans don’t come cheap.  The new one for Kaipara will cost ratepayers north of $10 million which will poured into a trough for consultants, lawyers and KDC staff to feed off over the next how many years.

Quite coincidentally, an independent review has just been released which recommends doing away with the RMA and replacing it with legislation that simplifies the regulatory processes.  Environmental Minister David Parkers said about the RMA:

“It has become too costly, takes too long, and has not adequately protected the environment.”

One of the major recommendations is that the number of policy statements in the country be reduced from 100 to 14.  That would mean a shared district plan over several regions.

The report also urges a reform of local government.  The report ominously warns:

The existence of 78 local authorities in a nation of just five million people is difficult to justify.

That suggests that amalgamations of local authorities will almost certainly follow

If all those changes are in the pipeline, we need to ask ourselves why we are pouring far more than we afford into complying with a legal framework that is almost certain to go through radical change in the near future.  The money will be completely wasted.

We have a council that ignores the obvious.  While the financial effects of Covid 19 on the community have been massive, the full extent of the destruction has not yet been seen.  And yet the KDC marches on as if nothing has happened. 

Mangawhai ratepayers are finding that their rates have increased by more than 5 percent to fund an army of consultants to spend years on a district plan that is never going to happen, and on consultants for design criteria for buildings and developments (recently reported to council) that will change fundamentally in the next few years.

The KDC has committed itself to investing our money in smart new offices in Dargaville that suit its blinkered aspirations when it is likely that the KDC will not exist in a few years.

Given that context, the draft Spatial Plan is a complete waste of time and, more importantly, our money.   The KDC should put on hold all such projects until after the election when the intentions of the new government in respect of local authorities and the RMA are announced.

The second issue is that we are being railroaded into accepting that growth is inevitable and that Mangawhai will, in the near future, become a new Orewa.  (See the growth assumptions in the Appendices to the draft plan.) We are told that we have to plan for "the inevitable" by opening up more land for development, and agreeing to smaller lots, so we can crowd more people in.

Mangawhai Central is a Trojan horse.  On the enticing pretext of a supermarket and convenient shopping, it has opened the door to a massive increase in population that is going to challenge not only our minimal infrastructure, but could end up in destroying our beautiful township.

If Mangawhai Central is given an open sesame for 1,000 new lots, and perhaps many more, (there is no set limit) then we will almost certainly find that our infrastructure, our facilities, our beaches, our reserves, our schools etc, are not able to cope with the increased population (and all of their guests and visitors over the holidays).

Surf Beach Mangawhai Heads 2025

We must try and limit Mangawhai Central to the existing limit of 500 lots, and reject the smaller sized lots that it is proposing. We must also ensure that development is not opened up elsewhere in Mangawhai.. 

We are being urged to vote for the opening up to development to fulfil the wishes of consultants and the KDC who can see a rich seam of gold to draw on, with scant regard for the infrastructure, and for the special amenities of our township.  What we should be doing is ensuring that we protect what we have and do all that we can as a community to stop any expansion that ruins the very special nature of Mangawhai.

In other words we must keep the “Magical” in Mangawhai.

I urge those of you who share similar sentiments to make you voices heard loud and clear by giving your feedback to the draft Spatial Plan.

I also ask you to encourage everyone that you know to do the same.  If we do not make our voices heard now then we cannot complain about what is inflicted on us in the future.

DRAFT SPATIAL PLAN FEEDBACK DETAILS

The KDC introduction to the spatial plan is here.

The draft Plan is here

The appendices to the Plan are here.

The feedback form is here.

If you wish you can simply email your comments to the KDC.  However it is best to make your comments under the same headings as in the draft feedback form, so that they can be more easily collated.

The deadline for feedback is 9 August 2020.

You do not have to write a lot.  Under the headings just state, for example, that you are opposed to or support what is stated.  Add your reasons if you wish.

I am lodging a fuller response, as follows:

VISION
I do not believe that the Spatial Plan and a new district plan is appropriate at this time for two reasons.

First, an independent review has just been released which recommends doing away with the RMA and replacing it with legislation that simplifies the regulatory processes. 

One of the major recommendations is that the number of policy statements in the country be reduced from 100 to 14.  That would mean a shared district plan over several regions.

The report also urges a reform of local government.  The report ominously warns:

The existence of 78 local authorities in a nation of just five million people is difficult to justify.

That suggests that amalgamations of local authorities are being planned

If all those changes are in the pipeline, we need to ask ourselves why we are pouring far more than we afford into complying with a legal framework that is almost certain to go through radical changes.  The money will be completely wasted.

Second, we do not yet know the full impact of Corvid 19 on New Zealand and our communities.  Local authorities should just mark time and stick to the basics until we have a clear picture of what lies ahead.

In addition to that view, I do not agree with the premise or vision on which the Spatial Plan is based.

The predicted development is only an assumption based on past growth.  Development cannot take place if it is not permitted under the rules of the district plan.

We only have limited facilities, amenities and infrastructure in Mangawhai.  They struggle to cope with the present population, especially during the holiday periods. 

We cannot increase those facilities, amenities and infrastructure, because we have no room for expansion, or the funds to pay for them. 

We only have one surf beach with limited parking.  We cannot create another surf beach or create more parking adjacent to the current one.  We cannot increase the number of roads to cope with the increased number of cars, or parking areas for motor vehicles.  There is no room for another boat ramp.  There is not enough room for parking for cars with boat trailers, even with present population.

The water supply is not reliable in the summer months.  The sewerage system cannot cope at present without immediate extensions and upgrades.  (See below)  

The scenario proposed by the Spatial Plan would destroy the delight of living in our very special place.

It would take the Magical out of Mangawhai.

Mangawhai Central is an unfortunate aberration that has been thrust upon us.  We need to ensure that the minimum number of lots are permitted (500) and that those lots pay their fair share of the capital costs and upgrades of the infrastructure,  The KDC has failed to be open and transparent in this matter and has lost the trust of the community.

As for other development, we should take steps to discourage it.  We do not want smaller lots, we do not want infill lots, nor should we open up land for residential development.    

NATURAL ENVIRONMENT
I support minimal development so that any adverse effects on the nattural environment are limited

IWI AND CULTURE
My own personal view is that we should celebrate the history and culture of all residents of New Zealand.

THREE WATERS
The government is planning fundamental reforms of the three waters (drinking water, rainwater and stormwater) throughout the country, so any plans for the future are futile.

The most important point is that we do not have adequate wastewater facilities to meet even small growth.  In the 2018/2028 LTP funding of $20.05 million was approved for extensions and upgrades to the Mangawhai Wastewater Scheme for the next 10 years. (LTP 2018/2028 Part 1 page 57)

The MCWWS already has a massive debt (of $58 million in 2012) hich is to be repaid over 40 years (refer the LTP 2018/2028 Part 1 at page 34), and yet the scheme will have reached capacity by 2006/2007 according to the Spatial Report on page 20.

[Sadly the KDC refuses to reveal information on the capacity of our wastewater facilities, misrepresents their capacity (in the supermarket application for consent) and keeps secret its proposals for the future (Mangawhai Central).]

All costs of growth of infrastructure must be paid by future development. The KDC must consult with the community before making decisions as to how the growth is to be funded. 

RURAL RESIDENTIAL ZONE
Minimal development of lots to ensure that the growth in population is commensurate with the amenities, facilities and infrastructure.

COMMUNITY
As stated above, many of the important current facilities and amenities are finite.  They cannot be increased.  We need more recreational facilities, not for future communities but for the existing community.

 Mangawhai Central, as proposed, does not include sufficient recreational facilities for a development of that size.

EMPLOYMENT
We need to wait and see if we survive Covid, and the local government reorganisation that it in the wings.

TRANSPORT
We are struggling to cope with the current population.  Any improvements should be for the current community.

A by pass along Tara Road/Cove road would remove a lot of heavy through traffic.

I question the craze for shared pathways with pedestrians, cyclists, and electric vehicles.  We do not have sufficient space to allow a pathway width that ensures adequate separation and safety.

Our population is older that the norm.  Older people do not or cannot go shopping on a bicycle.

OLD WAIPU ROAD ACCESS
Sounds sensible, unless of course you live on Old Waipu Road.

DIRTY TRICKS FROM KDC 20.07.2020
The 14 July 2020 was a very sad day for the Kaipara District Council.  Many of us have harboured some doubts about the competence and the integrity of the KDC, but on that day Mayor Smith and Chief Executive Louise Miller showed their true colours.

The Chief Executive put out a press release revealing the amount that the KDC had expended on legal costs in respect of Bruce and Heather Rogan and the MRRA.  However, the press release went further than that.  It contained quotes from Mayor Smith justifying the expenditure and placing the blame on the Rogans for instigating and continuing with the litigation. 

Those of you who lived in Mangawhai during the turmoil of 2010 onwards will know that the statements and allegations made by Chief Executive Miller and Mayor Smith in that press release make a mockery of the truth.  They are clearly an attempt to rewrite the history of the KDC and white-wash the actions that it has taken against its ratepayers in the last few years.  Even the most ardent supporters of the KDC will, I imagine, be surprised at the lengths the Chief Executive and the Mayor have gone to in order to shift the blame and to vilify the Rogans.

This was not a case of the Mayor and Chief Executive misunderstanding past events.  They have both been involved with the litigation against ratepayers since they took office.  They know what the facts are.  The press release was a calculated attempt to falsely shift the blame for the litigation and the massive legal costs on to Bruce and Heather Rogan.

One of the other allegations is that the Rogans refused to pay their rates.  It is mantra that we hear time and time again from Mayor Smith.  It is simply not true.  The Rogans desperately tried to pay their rates for years but were prevented by the KDC from doing so unless they first paid disputed penalties.  Hundreds of other ratepayers were treated in the same way.

Each of you will react differently to this rebuttal and correction of the spin and falsehoods of Mayor Smith and Chief Executive Miller and their attempts to demonise Bruce and Heather Rogan.  I have been involved intimately in the litigation throughout so I know exactly what happened.  I can therefore judge the seriousness of what Mayor Smith and Chief Executive Miller have tried to do in the press release. 

We expect absolute integrity from our elected members, including the Mayor, and from the Chief Executive of our council.  It is my personal view that Mayor Smith and Chief Executive Miller have shown in this press release that they do not have the necessary integrity to represent the ratepayers of this district.  They stepped over the line. 

The Press release was aimed at vilifying the Rogans.  In fact it serves to illustrate that Mayor Smith and Chief Executive Miller do not have the personal integrity to hold their respective offices in the KDC.

_______________

Below is a detailed rebuttal of the statements and allegations made by Mayor Smith and Chief Executive Miller in the press release.  It contains the actual facts relating to the legal actions taken by the KDC against the Rogans and many other ratepayers.

It should be compulsory reading for Mayor Smith, Chief Executive Miller, the elected representatives and all the KDC staff. 

I apologise for the length of the document but there were many allegations that had to be rebutted.

Background to the issue

For several years I have been tracking the amount of money spent by the KDC in litigation against the Rogans.  To start with the KDC responded to my LGOIMA (official information) requests and provided the information without any payment.  I have details of costs incurred until August 2018.  However attempts to obtain details of subsequent costs were met with a demand for payment.  I objected and wrote to the Chief Executive Louise Miller arguing public interest and breach of the Ombudsman’s guidelines.  Following a further rejection I requested Mayor Smith to intervene and presented legal arguments as to why the information should be revealed.  Mayor Smith rejected my submissions, advised that the Chief Executive was entitled to charge for LGOIMA requests, and then added, somewhat quaintly:

As you can see it is the will of the council that this be done.

I understand that Bruce Rogan, and perhaps others, all made similar LGOIMA requests.  They met with the same refusal.

As a result of the KDC’s refusal, several complaints were made to the Ombudsman in respect of this refusal to supply information.  Although no decision has yet been made by the Ombudsman the KDC would have been made aware of the investigation.  Perhaps the tipping point came when Radio New Zealand requested the information and was met with a refusal unless a fee was paid.  Radio New Zealand drew the Council’s attention to a ruling of the Ombudsman that councils could not insist on payment in exchange for information unless there was a large amount of work required to provide the information.  They asked, pointedly, “Is two hours (or so) of staff time a large amount of work?”  According to the reporter investigating this, Kaipara Council then decided to comply with the request without charge in preference to a public airing of their arbitrary refusal to do so.

This pressure from the media probably explains why the press release states that the KDC was “now keen” to disclose the information.
The Radio New Zealand article can be seen here.

KDC Statements

The press release is headed: Council defence costs $1.7 million.

The MRRA and Mr and Mrs Rogan brought six challenges against the Council over a period of six years.

Mayor Dr Jason Smith says complaints that the Council had pursued the Rogans were inaccurate.  Instead, the Council had had to defend itself against the challenges brought against it

FACTS

MRRA action in respect of unlawful rates

The only legal action brought directly by the MRRA against the KDC was in 2013 in respect of the illegal rates set by the KDC mainly in relation to the targeted rates for the EcoCare sewerage system.  The reference to this case is a red herring.  It has nothing to do with the subsequent rates recovery litigation against the Rogans and other ratepayers which the KDC initiated in 2014.  However, the details of this earlier litigation are set out below for those interested.

[In 2012 onwards the KDC Commissioners refused to take any action in respect of rates that were blatantly unlawful.  This was despite the fact that the KDC had a legal opinion from Simpson Grierson stating that “the rates cannot be regarded as enforceable by the Council” and “if judicial review proceedings were brought it is highly likely that all of the rates would be invalidated”.  The MRRA reluctantly filed for judicial review of the illegalities.  The KDC Commissioners responded by persuading Parliament to enact validating legislation to retrospectively validate six years of illegal rates and other illegalities.  The legislation was rushed through under urgency to change the law before hearing of the judicial review.  In that review the High Court held that, but for the retrospective validating legislation, it would have declared the rates and other illegal actions to be invalid.]

Legal action initiated by the KDC against the Rogans and other ratepayers

Following the passing of the Validation Act in December 2013 the KDC Commissioners reneged on their understanding with Parliament that they would remit all the penalties on rates that had been withheld.  The “whistle-blowers”, as they were called by Parliament*, refused to pay the penalties on the rates.  In August 2014 Bruce Rogan, as chair of the MRRA, arranged for himself and all other whistle-blowers to pay the withheld rates and all arrears of rates in full, but without the disputed penalties.  Close to a million dollars was paid to the KDC in full and final settlement of all rates arrears.  The KDC returned all of the payments.

*See the comments of MPs during the passing of the legislation in the Appendix at the end of this document.

See the NZ Herald report on the rejection of the payment.

A few weeks later the KDC Commissioners mobilised against hundreds of ratepayers by issuing legal proceedings to recover the rates and penalties, and, where the ratepayer had a mortgage, the mortgagees were pressured into paying the rates and penalties under the provisions of the Rating Act.  Hundreds of ratepayers were pursued in this campaign: The Stuff report is here.

Because the KDC had instituted proceedings against so many ratepayers, it was agreed that the case against the Rogans should be treated as a test case whilst all the other cases instigated by the KDC were stayed.  The Rogans were sued by the KDC to recover rates and penalties of $22,158.49 claimed by the KDC and NRC.  Of that amount the disputed penalties amounted to no more than a couple of thousand dollars.  The irony is that the Rogans were not allowed by the KDC to pay the arrears of rates unless they paid the disputed penalties.  (This is discussed below.)  In effect the KDC and NRC sued the Rogans for a few thousand dollars.

Every person has the fundamental right to defend legal actions brought against them.  This is a basic principle of natural justice that is confirmed in the NZ Bill of Rights Act 1998.  Accordingly, Bruce and Heather Rogan exercised that right by defending the action brought by the KDC and NRC on behalf of all the other ratepayers who had been sued by the two councils.

In short, the District Court, the High Court and the Court of Appeal denied the Rogans their fundamental right to defend an action for recovery of rates based on the courts’ interpretation of the Local Government (Rating) Act 2002 (Rating Act).  The District Court stated that the correct procedure to defend the claim was to apply for judicial review in the High Court.  The Rogans accordingly applied to the High Court for judicial review of the validity of the KDC’s rates.  They joined the MRRA as a party to protect the interests of the other stayed cases.  Whilst they had some success in the High Court, the Court of Appeal found for the two councils.

All of this legal action was instigated by the KDC and NRC in a test case against the Rogans to recover penalties from hundreds of other ratepayers. 

KDC Statement

Until 12 October, 2019 the Council defended its case under the direction of the Crown Manager, who remained in place to oversee ongoing legal action against the Council.  The Council has since defended further action brought by the Rogans, with final ruling in favour of the Council in February this year.

Fact

The Council did not “defend its case”, as it states.  As stated, it initiated legal action against hundreds of ratepayers, of which the Rogans were only one.  The KDC and NRC were the plaintiffs.

It was actually the KDC Commissioners who commenced legal action against ratepayers in 2014 and continued those legal actions until they were removed in 2016.  Peter Winder, one of the KDC Commissioners, was appointed as Crown Manager in 2016 to continue the legal actions against the Rogans and other ratepayers.  His terms of reference stated:

Make decisions relating to the legal actions within their management responsibilities, including the power to initiate and manage new legal actions, or discontinue current legal actions, that fall within their responsibilities

The Crown Manager’s role was terminated in 2019.  His final report to the KDC was included in the agenda for the Council meeting of 26 September 2019 at page 137.

The report makes it clear beyond any doubt that that the legal actions pursued by the Crown Manager were instigated and pursued by the KDC.  The report states unequivocally:

 In 2014, Kaipara District Council (KDC) initiated action in the District Court seeking recovery of outstanding rates from a number of ratepayers.

 The Rogans chose to defend the rates recovery action against them.

The report also makes it clear that the Crown Manager’s approach to the legal actions against the Rogans and other ratepayers were “consistent with views that the council has consistently expressed to the Crown Manager”.  In other words, Mayor Smith and Chief Executive Miller endorsed the actions taken against the Rogans and other ratepayers.

Under the heading Actions and Progress by the Council on page 3 of the report, the Crown Manger sums up the situation in respect of all the other actions (in addition to the action against the Rogans) that the KDC has instigated against its ratepayers.  I quote it in full because it shows the extent of the legal actions instigated by the KDC which were still outstanding 4 years after they were commenced.

There are 5 ratepayers that are subject of sealed judgements requiring the payment of outstanding rates for the period for which the Crown Manager is responsible.  Two of these ratepayers are on payment plans and repayments are actively monitored to ensure the debt is paid.  The other three have received two letters threatening enforcement of the sealed judgement unless payment is forthcoming and offering to discuss a payment plan.  These three ratepayers will receive one further lawyer’s letter and if payment is not forthcoming, the next step will be to apply to the Court to enforce the judgements by way of rating sales. 

Council staff are working progressively through the outstanding rates accounts for the period for which the Crown Manager has responsibility for rates related legal action.  Substantial progress has been made in collecting outstanding rates from properties that have mortgages.  Sixteen properties with private mortgages still have unpaid rates.  These will need to be followed up with action to initiate a charging order.  Of the properties that were approaching time -barred status, the Council has secured the necessary Charging Orders to protect the Council’s interests.  Staff are set up to progress these to secure payment, if necessary, through rating sales.  Council staff have completed work on 60 property files which are now with Council’s lawyers to secure Charging Orders.  A further 10 property files are ready to be actioned. 

That makes 91 cases instigated by the KDC, over and above the Rogans’ case, that were still outstanding after 4 years. 

It should also be noted that at the Council meeting when the final report was presented a councillor asked the Crown Manager how much had been expended by the KDC in pursuing the Rogans.  This was an important question as under his terms of reference the Crown Manager was obliged to have regard to stated Guiding Principles.  One of those Principles was that Ministerial assistance or intervention should have regard to the costs and benefits of assistance or intervention.  In other words the benefits must justify the costs.  At that stage the KDC had not recovered anything from the Rogans despite 4 years of litigation.

The Crown Manager said the he did not know the figure, but suggested that the Chief Executive might be able to help.  The Chief Executive stayed silent even though she had all the figures to hand ready to disclose to me if I paid the fee she was demanding.  Mayor Smith did not press the Chief Executive for the figure. Councillors were therefore left in the dark.

Clearly the Minister, Nanaia Mahuta, did not oversee compliance with the terms of reference.

KDC Statement

It’s disappointing that this has gone on for so long and has cost ratepayers so much.  Mr and Mrs Rogan could have stopped after a change in law legitimised the Council’s position, or after the office of the Auditor General published a detailed report on events surrounding the wastewater scheme decisions.

Facts

The validating legislation and the Auditor-General’s inquiry have nothing to do with the issue before us.  But, for the record, here are some details.

The validating legislation retrospectively validated 6 years of illegal rates and other illegalities perpetrated by the KDC.  For those interested, the Preamble to the Kaipara District Council (Validation of Rates and Other Matters) Act 2013 includes 66 clauses, each of which sets out an illegal action taken by the KDC.  

The Auditor-General’s overview of the Inquiry into the Mangawhai community wastewater scheme can be seen here.  The final report can be seen here. It is 423 pages of criticism of the KDC and its performance.  In her personal apology delivered to the Mangawhai community in Mangawhai, the Auditor-General said the KDC had failed to meet its fundamental legal and accounting obligations.  It failed in its management, governance and documentation of the nearly $60 million scheme, making decisions on its funding in closed workshops instead of open meetings.

KDCStatement

They could have stopped at any time.  Instead the Rogans chose to continue pursuing the Council as far as the Courts would allow,” says Mayor Smith.

Facts

The Rogans did all they could to pay their rates arrears that had accumulated during the rates strike of 2012.  The rates strike was commenced to force the government to take action to rein in the KDC which was completely out of control.

Bruce Rogan advised all rate strikers to hold the withheld rates in a separate account so that they could be paid over once the illegalities were resolved.

Bruce Rogan also tried to arrange with the NRC a way that ratepayers could pay NRC rates (collected by the KDC) directly to the NRC to avoid the effects of the rates strike.  Bruce Rogan recalls the situation in his own words:

 “I approached NRC Chief Executive Mr Nicolson at the behest of the MRRA members who were holding back their rates with an offer to pay all the NRC rates directly to the NRC.  He told me that KDC were their collection agent and that is where the money had to go.  I then approached Craig Brown, who was Chair at the time, and asked him to put pressure on Nicolson to comply with our request.  He came back to me after talking to KDC Mayor Tiller and said that they were standing firm with KDC and would not co-operate.

 I then went back to Mr Nicolson and pointed out to him that a ratepayer was legally entitled to pay his or her NRC rates directly to NRC (the Act says so), so I again asked him for a bank account number that I could use myself and pass on to our members.  His response was that, yes, they could do that if they really wanted to but all that would happen is that the money would be transferred to KDC and applied to the ratepayer’s account.  I advised our members and we gave up on trying to pay NRC separately.”  

Even when (in 2012) the KDC obtained a legal opinion that stated that 6 year of rates were unlawful, Bruce Rogan reached agreement with KDC Chief Executive Steve Ruru that the Council and ratepayers would from a focus group to resolve the illegal rates issue between themselves.  The KDC passed a resolution to that effect.  As soon as the Commissioners were appointed they rescinded that resolution.

As stated above, in August 2014 Bruce Rogan also arranged for ratepayers to pay all their outstanding rates to the KDC, without the disputed penalties, to settle the matter.  The KDC rejected the payments and immediately sued the whistle-blowers for those rates and penalties. 

Despite this setback, the Rogans, along with other whistle-blowers, tried to pay their rates instalments as they fell due.  Bruce Rogan tried to pay his current rates instalment in November 2014 by internet banking.  The KDC Revenue Manager emailed him on 24 November 2014 acknowledging receipt of the payment of $1,279.80.  The email went on to say:

Council is not authorised to allocate you payment towards a current instalment where there are previous arrears owing.  According to KDC’s rating policy payments are to be allocated to the oldest amount due. 

The payment was refunded, an instalment penalty was added, and further penalties were added every 6 months for the next 5 years.

This refusal to accept a rates payment was purportedly pursuant to the “oldest debt first policy” which was introduced by the KDC Commissioners in late 2012. Under the policy no arrears of rates or rates instalments would be accepted by the KDC if there were any prior debts outstanding. The policy applied even though there were disputed debts.

The policy is in blatant breach of the Rating Act which provides that a ratepayer is obliged to pay an instalment as it falls due, and a penalty can only be added if the instalment is not paid by the due date.  A local authority is not allowed to alter or override those provisions by insisting on the payment of rates arrears, or any other costs, or the performance of any other condition.

The KDC enforced the policy against the Rogans and other whistle-blowers over the following four years.  In November 2018 the Rogans tried again to pay the current rates instalment by direct credit which is on of the accepted methods of payment under the Rating Act.  The KDC refused to accept the payment and refunded it.  It then added an instalment penalty and subsequent further penalties every six months.

From: Administration Requests <administrationrequests@kaipara.govt.nz>
Sent: Monday, 19 November 2018 2:20 PM
To: brucerogan2017@gmail.com
Cc: Administration Requests <administrationrequests@kaipara.govt.nz>
Subject: FW: rates instalment. for Attn: revenue manager

Good Afternoon Mr Rogan

Thank you for your email relating to your rates and your payment of $1,581.87, which you have specified is to be allocated to the current instalment.  Council policy provides that any payments received will be credited first towards the oldest amount due.  In light of this, we will be arranging to have the payment returned.

Regards .........

In December 2018 the Rogans and Boonhams agreed to try and pay all the arrears of rates but without paying the disputed penalties.  Chief Executive Louise Miller responded by stating that the payments would be applied to the oldest debt first, including the disputed penalties.  If this was not acceptable the payment would be refunded.  However, the Rogans and the Boonhams insisted that they should be allowed to pay all the arrears of rates only. 

In an email of 12 February 2019, after over four years of rejecting our rate payments, the KDC Chief Executive Miller finally agreed to finally accept the payments as outstanding rates only, excluding penalties, interest and costs”.

Not only that, from that date onwards Chief Executive Miller also allowed the Rogans and the Boonhams to pay their instalments as they fell due.  This meant that when the Rogans were forced to settle last month no rates were outstanding.  Just legal costs, the disputed penalties and interest.

Chief Executive Miller gave the Rogans no explanation as to why the oldest debt first policy was enforced for over 4 years and was then suddenly waived.  She would not explain why some ratepayers received favourable settlement terms with confidentiality clauses, with penalties being waived, whilst the Rogans were charged every cent of the penalties.

Most of those penalties charged to the Rogans were imposed on payments that the Rogans were prevented from paying for over four years.  The penalties permitted by the Rating Act, are oppressive.  An instalment penalty of 10 per cent is added if an instalment is not paid by the due date.  Further penalties of 10 per cent are added at six monthly intervals on all accumulated rates arrears and penalties outstanding, on a compounding basis.  By preventing the Rogans and many other whistle-blowers from paying their rates for four years the KDC scored a windfall in penalties.

From 2014 onwards Bruce Rogan made numerous attempts to settle the legal action brought by the KDC against him and his wife and the other actions brought against other whistle-blowers.  The KDC Commissioners and subsequently the Crown Manager, supported by the KDC, refused to negotiate any settlement.  They wanted the penalties paid in full.  This intransigence on the part of the KDC continued during the term of Mayor Smith and Chief Executive Miller.

 Illegality of the oldest debt first.

The KDC asserts that it is entitled to prevent ratepayers paying rates instalments and arrears unless all arrears are paid first.  As I have said, the policy is blatantly unlawful.  However the KDC maintains that it has a legal opinion from 2014 that states that the policy is lawful.  It has relied on that legal opinion over the past 4 years to sue or coerce many ratepayers, such as the Rogans, into paying large amounts of penalties on their rates. 

There have been endless LGOIMA requests but the KDC has consistently refused to supply a copy of the legal opinion, citing professional legal privilege.  However the stance of the KDC was contradicted by the then KDC Revenue Manager during the Rogan District Court hearing.  She admitted under oath that the legal opinion stated that the policy had not been formally adopted by the KDC, therefore the KDC could not lawfully prevent a ratepayer from paying instalments as they fell due.  Despite that the KDC has continued to maintain that it was and is entitled to prevent ratepayers from paying rates instalments and rates arrears.

Several complaints have been lodged with the Ombudsman asking that the legal opinion be disclosed on the basis that it has been partial disclosed and relied on by the KDC, and in the public interest.  If it turns out that the policy is unlawful there will be hundreds of ratepayers who will be seeking restitution of penalties unlawfully demanded and paid.

In addition, those in the KDC who made the decisions to enforce the policy against ratepayers whilst knowing that the policy was unlawful, run the risk of having committed an offence under the criminal law.

KDC Statement

Kaipara District Council has spent $1,726,891 on legal fees to recover rates owed and defend itself against the challenges brought by Mr and Mrs Rogan and the Mangawhai Residents and Ratepayers Association.

Facts

KDC’s figures for legal costs in pursuing the Rogans

The press release states that the figure of $1.7 million or so includes the 2013 judicial review referred to earlier.

The Radio NZ article mentioned above says that the KDC maintains that the legal costs incurred in its legal actions against the Rogans alone amounted to $345,000.  In an email to me the KDC stated that that figure is an estimate.  It is a very light estimate.  The NRC spent $459,000 on the same proceedings (see below) and the NRC played a very minor role in the legal action.  (The two councils were represented by the same lawyers and legal counsel.)  The figure that I have from the KDC as at August 2018 is just over $1.8 million.  The amount from August 2018 to 2020 has not been disclosed to me but that needs to be added in.  That would put the figure at well over $2 million.  It is a little confusing but it appears that a large part of that amount relates to the MRRA judicial review of 2013 which had nothing to do with the current issue.  It appears therefore that the actual legal costs incurred by the KDC in pursuing the Rogans was close to the $1 million mark.  And that does not take into account the enormous amount of time expended by the KDC staff.

Northland Regional Council

The NRC role in this saga is general overlooked, mainly because the KDC invoices and collects rates on NRC’s behalf.  However the two councils sued the Rogans jointly for their separate arrears of rates.  That was somewhat unfair considering that the Bruce Rogan had tried unsuccessfully to get the NRC to allow payment of its rates directly to the NRC.

The NRC sued the Rogans for a few thousand dollars which the Rogans were clearly always ready and willing to pay, but were prevented by the KDC from doing so because it applied the oldest debt first to the rates of the NRC.

The NRC has acknowledged in writing that it never adopted the oldest debt first in any format, and it did not authorise the KDC to apply the policy to its rates.

Even worse than that, the penalties that the NRC sought to recover were in the hundreds of dollars.  The legal costs that it incurred in recovering rates that the Rogans were always willing to pay, and a few hundred dollars in penalties, amounted to $459,537.14.

KDC Statement

 Instead, the Council had had to defend itself against the challenges brought against it to be fair to the vast majority of ratepayers who had paid their rates in full.  He says the Council has to give ratepayers confidence that everyone pays their share of rates.

“We believe we had a responsibility to recover whatever costs we could on behalf of ratepayers.  The costs awarded by the court don’t cover the Council’s defence costs but it goes a small way towards it.”

Facts

The Rogans were sued by the KDC and NRC for a little over $22,000.  Most of that was rates arrears that the KDC prevented the Rogans from paying.  So the amount in issue was only a few thousand dollars in penalties.  To recover that sum the KDC and NRC pursued the Rogans and between them expended close to $1.5 million on legal costs and internal costs.  That was over a five year period.

Curious as to why the KDC spent so much time and so much money on pursuing the Rogans for so little, I made a LGOIMA request to Chief Executive Miller asking for the total amount of rates outstanding in Kaipara for the last five years.  This is what I was advised:

Year

Land Rates and Penalties

June 2019

$7,389

June 2018

$6,069

June 2017

$5,006

June 2016

$4,761

June 2015

$5,033

 

Clearly the amounts are incorrect.  I then checked with KDC’s Quarterly Finance report which I found under the Audit, Risk and Finance Committee agenda.

At 31 July 2019 the KDC had 2,195 ratepayers who owed rates totalling $7,024,681.  By 30 April 2020 the figures had come down to 459 ratepayers with $4,295,929 outstanding.   By area the largest amount of rates outstanding were in the Central and West Coast areas.

Mayor Smith stated in the press release:

The Council has to give ratepayers confidence that everyone pays their share of rates.

Clearly there are many ratepayers throughout he district who are not paying their share of rates, and that has been the situation for many years.

The question that must be asked, once all the facts are brought to light, is why the KDC, including Mayor Smith and Chief Executive Miller, ignored the massive amount of outstanding rates across the district and spent over a million dollars and over 5 years relentlessly pursuing Bruce and Heather Rogan to recover a few thousand dollars in penalties.  It sounds very much like a vendetta that was carried out with no regard for cost. 

The irony is that the penalties that they did recover are likely to be declared to be unlawful.

 

Clive Boonham

cliveboonham@gmail.com

______________________________________

 

APPENDIX

Quotes taken from Hansard during the passage of the Kaipara District Council (Validation of Rates and Other Matters) Act 2013:

PHIL TWYFORD (Labour—Te Atatū) Member of the Select Committee

The second is that the Mangawhai ratepayers group must not be punished for blowing the whistle.  There were wrongdoings committed here.  The financial cost to the residents is significant, and they must not be punished for blowing the whistle.  That is why I am pleased to see a commitment being made by the commissioners to the select committee that there would be an amnesty for the rates penalties incurred by those people withholding their rates in protest at this situation.

NICKY WAGNER (National—Christchurch Central) Chairperson of the Select Committee

In recognition of the concern of some ratepayers with regard to their rates strike and their passionate challenging of the council’s long-term behaviour, we have negotiated an amnesty on penalties if ratepayers remit their arrears in the next few weeks.  I think that is an extremely important part of this legislation.  It was something that we agonised over.  It was a very difficult thing to manage through the legislative process, and I think that coming to an agreement with the commissioners outside the legislation while including that in our commentary was a good, pragmatic, sensible way of dealing with it.

DARIEN FENTON (Labour)

I am also pleased that there is going to be an amnesty.  There was an agreement with the Kaipara District Council.  As I say, a lot of people will still not be happy, but it is progress.

EUGENIE SAGE (Green) Member of the Select Committee

What we are debating today will not be popular, but I would like to pay tribute to the work of the Mangawhai Residents and Ratepayers Association because it blew the whistle on what was happening at Kaipara.  It did that over many years, and it was not until relatively recently that Government agencies started to listen.  We heard repeatedly from submitters that people who were withholding their rates were law-abiding citizens and that they normally took payment of rates very seriously, but the fact that they were so frustrated by the failure of authorities to act on the recognised problems at Kaipara led to their frustration and led to the withholding of rates.  So the agreement that the select committee negotiated through Mike Sabin with the commissioners—that they would agree to waiving the penalties—is just a small consolation, I guess, and a token acknowledgment of the work of the whistleblowers, and it acknowledges that they should not have to pay penalties because of their withholding of rates to draw attention to the problem.  But also the fact that people need to pay rates recognises that they are getting their services, as Darien Fenton noted, and that the council has continued to provide those services to everyone in the community.

IN COMMITTEE 

https://www.parliament.nz/en/pb/hansard-debates/rhr/document/50HansD_20131204_00000024/kaipara-district-council-validation-of-rates-and-other

Su’a WILLIAM SIO (Labour—Māngere) Member of the Select Committee

The Labour Party sought from the Government and its commissioners relief for ratepayers by way of an amnesty of the penalties for rates withheld.  We are pleased that the commissioners have agreed to provide this rates relief on penalties and extend this rates relief to ratepayers, in relation to the Mangawhai community waste-water scheme, to 1 January 2014.  A line has to be drawn under this relief to allow all Kaipara ratepayers to move forward.  This relief will cost approximately $1 million, which will be borne by all Kaipara District Council ratepayers

 KDC AND MANGAWHAI CENTRAL   17.07.2020
There is a small window of opportunity to stop the KDC from entering into a secret agreement with Mangawhai Central Limited in respect of its proposed development.

I made a LGOIMA request for a copy of the agreement.  The KDC chief executive Louise Miller advised that the agreement is in draft form only.  She declined to comply with the request, citing commercial sensitivity etc.  She acknowledged the community interest in the contents of the agreement but stated that she could see no good reason why it should be released before it was signed.

Of course, once it is signed it is beyond challenge in the legal sense. Any sweetheart deal that has been agreed to will be set in legal concrete.

I have therefore written to the elected members of the KDC on behalf of the Mangawhai community asking them to intervene in this matter and prevent the agreement being signed until it has been consulted with the community.

I urge you all to read the correspondence below, to tell all your friends and neighbours, and to ask everyone to pass it on. This may be our last opportunity to stop Mangawhai Central and the KDC from destroying Magical Mangawhai as we know it.

Then, I urge you to contact the Mayor, the Councillors and the Chief Executive and let them know your feelings.

This is the letter to the KDC elected representatives sent today 17 July 2020.
 
For the KDC elected representatives
This is an urgent request asking you to take action to stop the KDC from entering into an agreement with Mangawhai Central Limited (MCL).
 
Below is a chain of letters in reverse order (starting from the bottom) setting out correspondence in this matter between the KDC and myself.
 
You will note that the KDC Chief Executive has refused to disclose the draft agreement between the KDC and MCL on the grounds of commercial sensitivity etc.
 
The community of Mangawhai does not trust the staff of the KDC to act in their best interests.  We have been in a situation like this before with the EcoCare disaster and the behaviour of the KDC in respect of Mangawhai Central is running along parallel lines. 
 
In that earlier case case the KDC agreed to extensions and price increases (which doubled the price of the project) in public excluded and without consulting the community.  The KDC was held to be breach of the LGA 2002 and the High Court held that the EcoCare project was unlawful because of that.  That finding still stands.
 
I also point out some of the issues that have caused grave concern amongst the community.
 
Wastewater
 
It is absolutely clear that the KDC staff have made misrepresentations in its dealings with MCL, in its reports submitted on the supermarket consent application, and in verbal evidence at the supermarket consent hearing (which I attended).  The KDC stated unequivocally that the Mangawhai wastewater system “has the capacity” (present tense) to receive all the connections from Mangawhai Central.
 
This is contrary to all the information that has been made available to the community and is a blatant misrepresentation of the facts.

It is also glaringly incorrect because Plan Change 78 does not stipulate the number of connections that can and will be made. It has been assessed that up to 1700 connections could be made pursuant to the rules that are proposed to be amended under the Plan Change.It also appears that the KDC has failed to comply with its own Engineering Standards.
Paragraph 7.1.1 of the Standards refers to the various wastewater catchment areas, including Mangawhai, and then states:
Generally within these catchments all domestic wastewater shall discharge to the public reticulation.
 
The following requirements shall be met:
(a)Where subdivision or land development is within the area served by a Council system or an extension to a Council system is proposed, the written approval of Council’s Asset Manager shall be obtained and provided with the application to confirm that the Council sewerage system can be extended to serve the subdivision or development.The Council is responsible for the assessment and approval of the Developer‟s detailed design of proposed extensions to the sewerage system.
 
Council will advise the Developer’s designer of any limitations that may exist to the number of sections, peak flows or timing of flows that may exist. 
 
If the existing network does not have sufficient capacity at the nominated connection location to receive the number of sections or peak flows from the development, the Developer will either need to:
  • Design and construct an appropriately sized attenuating storage to reduce peak flows to level compatible with the network.
  • Convey sewage to a different location in the network where adequate capacity exists.
  • Pay for the required upgrade to the system.
 
Water

The same concerns also exist in respect of the proposed supply of water.  KDC staff have stated that there is (present tense) an adequate supply of water for the MCL proposal without providing any evidence. 
 
That position of the KDC flies in the face of the issues of global warning and the severe shortage of water for Mangawhai as it is at present, even without the additional burden of supplying water to a thousand plus extra lots.
 
Unlawful procedure
 
I also need to draw attention to the unlawful procedure of the KDC in respect of the application for consents for the supermarket, Main Street etc.  All of those consents – which were granted – were blatantly in breach of the rules of the operative District Plan.  Part of that Plan is Estuary Estates (Chapter 16) which was the operative part of the Plan for the consents application.
 
Clearly the KDC staff collaborated with the applicant (MCL) to override the provisions of the Plan so that the consents could be granted.  The KDC staff endorsed every aspect of the proposed consents despite their blatant non-compliance with most aspects of the rules of Chapter 16.  Both parties attacked the rules in the Plan as being out of date, impractical, and not in the best interests of the community.
 
This behaviour of the KDC was totally contrary to the understanding that a local authority must defend the provisions of its District Plan.
 
The Hearing Commissioners acquiesced in this charade.  They treated the representatives of each party as expert witnesses, and granted the consents. They argued that although the specific rules for each consent were breached, they deemed that the consents were compliant with the general principles of the District Plan.
 
Such a conclusion is contrary to the principle of law that a specific rule for a set of circumstances takes precedence over general rules.
 
It is also in breach of the clear intention of Chapter 16 of the District Plan:
16.1.3 How to Use this Chapter of the District Plan
This Chapter specifies what land uses can or cannot be done in this Zone. Where someone wants an activity that is not provided for or does not meet the Standard for that activity, they will need to lodge a Resource Consent. Council has an opportunity to approve or decline the application and to set conditions on how this activity is done. This Chapter also seeks to make sure that subdivision has adequate servicing, including roads, to avoid, remedy or mitigate effects on the environment.
Plan Change 78

In granting the consents the Commissioners acknowledged that Plan Change 78 had been lodged, but that it had no relevance to the application for resource consents.  They were obliged to interpret the District Plan in its operative form, namely Chapter 16.
 
Indeed.  But is it coincidental that all the consents that were granted were identical to the proposals under proposed Plan Change 78?
 
All those involved with this unlawful charade knew that the correct legal procedure was to apply for the plan change first, and then apply for the consents based on the amended plan.  That is the progression that is correct and logical.
 
By short-circuiting the correct procedure MCL can now show that it has existing consents in respect of the land that conform with the proposed plan change, which include sufficiency of infrastructure, so that it will be virtually impossible for the commissioners hearing the application to reject the plan change.
 
Note also that the public notification for the resource consents consents was on 18 December 2019, but only in the Lifestyler and not in the Mangawhai Focus which is the main newspaper for the Mangawhai community.  The KDC maintains that it complied with the provisions of the RMA, but the community believe that it was a deliberate attempt to avoid consultation with the community.  As a result only three submissions were received.
 
Binding contract
 
The community has no idea what the draft agreement contains but with our trust for the KDC fast disappearing we are concerned that it will be a sweetheart deal with MCL in respect of the proposed plan change and will include special arrangements in respect of vital infrastructure and fees and contributions that will be payable.
 
Once the agreement is signed the KDC will be legally bound by the terms of the contract. The Chief Executive states somewhat arrogantly in the letter from Linda Osborne below:
I understand there will be public interest in the matter however as further details will be publicly available once finalised I see no good reason to release the agreement beforehand.
She knows full well that  once the agreement is signed it will be too late.
 
The community is concerned that it is facing another disaster that will equal the affects of the EcoCare disaster.  In that case all of those responsible for the financial chaos that resulted disappeared without any liability, whilst the community was forced to bear, and is still bearing, the massive costs of the KDC’s recklessness and illegalities.
 
Please help the community to stop that happening again.
 
 
Clive Boonham
 
 
 
Read this chain of emails in the reverse order.  Start from the last one.
 
 
From: Administration Requests
Sent: Friday, July 17, 2020 9:15 AM
To: Clive
Cc: Administration Requests
Subject: FW: MCL agreement/ Commissioners' decision
 

Hi Mr Boonham

Thank you for your LGOIMA request asking for copies of all agreements reached between the KDC and Mangawhai Central Limited, or associated parties.

I can confirm there is a draft agreement No.1 that will be finalized shortly.  However the agreement itself is confidential and as such is withheld under section 7(2)(h) and (i) of LGOIMA to enable Council to carry out, without prejudice or disadvantage, commercial activities; and negotiations.  I can also confirm that broad details of the agreement will be publicly available on our website once it is finalised and signed.

While making the decision to withhold the draft agreement I considered whether there was a public interest in the matter.  I understand there will be public interest in the matter however as further details will be publicly available once finalised I see no good reason to release the agreement beforehand.

If you have not seen it already, the Commissioners’ decision on the supermarket consent has been added to the Mangawhai Central page and includes a table of resource consents granted.  It can also be found on the home page under the Alerts section.

Under section 27 of LGOIMA you have the right to complain to the Ombudsman for a review or investigation about Council’s decision to withhold the draft agreement.

Regards Linda

 

Linda Osborne | Administration Manager

Kaipara District Council, Private Bag 1001, Dargaville 0340

Freephone: 0800 727 059 | 09 439 3123

council@kaipara.govt.nz | www.kaipara.govt.nz

 

 From: Clive <cliveboonham@gmail.com>
Sent: Friday, 19 June 2020 10:15 AM
To: Chief Exec <chiefexec@kaipara.govt.nz>
Cc: Administration Requests <administrationrequests@kaipara.govt.nz>
Subject: MCL agreement/ Commissioners' decision

Hi Louise

At the KDC council meeting of 27 May 2020 the elected members considered, in public excluded, the Mangawhai Central Development Agreement Draft one. The matter was public excluded because of the commercial sensitivity provision in LGOIMA.

This agreement is also mentioned in various reports attached to the PPC78. It is also referred to in the Commissioners' recent decision on the Supermarket Consent:

25. Mr Chandra also advised that all of the conditions and advice notes he recommended be imposed if consent was granted, had been agreed with the Applicant. These included the issues relating to financial contributions and development contributions – and that the Applicant and Council are in discussions regarding a “Private Development Agreement” to determine the level of contributions that will be payable.

You will be aware that the KDC also signed off the EcoCare extension under public excluded, and that turned out to be a disaster for the community.

I therefore request, as a LGOIMA request, a copy of all agreements reached between the KDC and Mangawhai Central Limited, or associated parties.

In addition, could you please make the Commissioners’ decision on the Supermarket Consent clearly locatable and accessible on your website.

Regards

Clive

WOOD STREET FUNDING APPROVED   08.07.2020
The KDC has just announced that NZTA funding for the Wood Street revitalisation has been approved.  Details are on the KDC website.

A further design workshop is to be held for the community on Saturday 18 July at 10am to 12 noon at the Mangawhai Club.  You are invited to bring along your ideas.

SEEN BUT NOT HEARD  08.07.2020
About 50 ratepayers crammed into the space available at The Club in Mangawhai last week to watch the KDC in action at a council briefing on the Mangawhai Community Plan costings and funding.

I say “watch” because it was virtually impossible to hear what was being said by the elected members and the staff.

There were murmurs of discontent and a couple of ratepayers addressed the meeting with their concern at the situation.  Mayor Doctor Smith was not happy with the interruption.  In his best school master manner he pointed out that it was the best location available and that the KDC was a poor council.  This presumably meant that the KDC could not afford PA equipment.

Perhaps his most cutting remark was that normally there were only two or three members of the community at council meetings. He appeared so suggest that the community was not normally interested.

Mayor Doctor Smith boasts in the latest LTP that his council is “open, transparent and engaged with communities”, and yet he does nothing to foster true democracy by having all items open to the public, and by ensuring that ratepayers can actually hear what is being said at meetings.

It reminded me of being at school when we “did” the feudal system in the Middle Ages.  The Lord of the Manor seated at the head of a huge table in the Long Hall with his barons on either side, while the serfs squatted outside wondering what fate had been decreed for them.

I have been to a few KDC council meetings and a few commissioners hearings and in both cases it is very difficult to hear what is being said.  Like many, I have largely given up.  Why would you keep going to the movies it the sound track is inaudible?

As for cost, the elected members were swamped (after we left) with a mountain of projects dreamed up by staff and supported by an army of consultants’ reports to aimed at spending millions of our dollars on projects that have absolutely no relevance to post Covid Kaipara.

 A few bob spent on a basic PA system (without the need of a consultant’s report) would be a large step towards more transparency.

THE TWO ROUNDABOUTS TANGO
What is it to be?  No roundabout?  One roundabout?  Two roundabouts?

The roundabout tango goes back decades.  How do you fix the issues where Insley Street and Moir Street intersect by the Mangawhai Village Library Hall?

The KDC staff have floated various suggestions as part of the Mangawhai Community Plan (MCP).  This culminated in Jim Sephton (the KDC General Manager of Infrastructure Services) telling the elected members at last week’s briefing that the majority of the community wanted two roundabouts.  The other was to be at the junction of Moir Street and Molesworth Drive, in front of Carters.

No doubt the elected members presumed that the staff had gone through the appropriate consultation process to arrive at this conclusion.  Unfortunately, that had not happened.  The roundabout was only mentioned in passing in the MCP, and was not included in the 2018/2028 LTP.  No formal consultation, as required by the Local Government Act 2002 has taken place.  (See post below.)

Certainly there had been some information provided but not to the extent required by the legislation.

It is also difficult to believe that the community has genuinely opted for two roundabouts.  The adjacent owners are seriously affected by the proposals and are opposed to any change.  There are also many in the community who believe that the cost and interference with neighbours legal rights is simply not justified.  The junctions may have some issues at busy times, but roundabouts are going to do little to ease the pressure, and will create more problems of their own.

In respect of the additional roundabout at the junction of Molesworth Drive there is already a triangular roundabout that serves its purpose and it is hard to imagine how a round roundabout will improve matters.

Perhaps, at the end of the day, the issue is not really about the traffic flow but more to do with the work flow and money flow.  Projects such as this justify the employment of KDC staff engaged in such proposals, which in turn justifies the contracting of consultants to plan and supervise, followed by the contractors who do the physical work.  It is part of the local government trough that we fund through our rates that supports multiple levels of troughers.

With the dire effects of Covid 19 on the community still to be realised, a genuinely concerned council should be looking at canning or putting on hold all proposals that are not absolutely necessary.  The roundabouts proposal is one of them.

In addition, we also have to consider the effect that Mangawhai Central may have on the dynamics of Mangawhai, and the effects of the Mangawhai Spatial Plan.  Why rush into major works such as this, and at this time, when the situation may change substantially in the next few years?

WOOD STREET IMPROVEMENTS    08.07.2020
The Wood Street proposal is one of the few proposals that was raised in the Mangawhai Community Plan (MCP) and actually funded in the 2018/2028 LTP.  (See the post below.)  The other positive is that the KDC staff have applied for 90 per cent funding from NZTA from the Innovative Street Fund.  It appears from the briefing document presented to the elected members that the balance of about $500,000 will come from the $800,000 budgeted for this project in the LTP.

IS THE MANGAWHAI COMMUNITY PLAN LAWFUL?    07.07.2020
Fifty or so of the Mangawhai community crowded into the Club in Mangawhai last week to watch the KDC in action.  It involved a briefing for the elected members on the Mangawahi Community Plan (MCP).

The KDC staff made presentations to the elected members to confirm some of the proposals under the MCP and to brief them on the proposed funding.

The original Plan was adopted in 2017.  It is a rather vague document with airy-fairy projects and very light on specifics, priorities and funding.

The unfortunate and ill-planned foray by KDC staff last year into the Alamar Reserve showed that the KDC staff simply did not understand the mechanics behind the Plan.

Clearly the intention, and the correct procedure, was for the bare bones of the proposals in the MCP to be fleshed out in detail in the 2018/2028 Long Term Plan (LTP) so that the appropriate consultation with the community could be undertaken.  Only then could any action be undertaken

The MCP itself stated on page 2:

Budgets included in this plan are estimates at this point, and will be confirmed as part of the development of Council’s next Long Term Plan 2018/2028.

A KDC fact sheet sets out the process for the MCP that was to be followed.

Mangawhai Community Plan
In mid-2016, Council set up a panel of community representatives to make recommendations for Mangawhai.  Their recommendations were received and approved by Council in July 2017.  The MCP was received by Council at its 20 January 2018 meeting.  The MCP was adopted by Council at its 28 February 2018 meeting.  Moved by Geange/Wethey, carried.  Mangawhai Coastal Connections was identified as a priority one project to begin construction 2018/19.  The Priority One projects identified have been provisioned for in the Kaipara District Council’s Long Term Plan.

Long term Plan
The Local Government Act 2002 (LGA) requires every council to produce a Long Term Plan (LTP) every three years.

The LTP outlines our activities and priorities for the next 10 years, providing a long term focus for decision-making.  It also explains how work will be scheduled and funded.  Under the LGA, LTPs must be reviewed every three years with full consultation with the public each time.  An Annual Plan is developed in the years in between.

The Council held briefings across the district to discuss options and directions for setting the Long Term Plan 2018/2028.  These meetings were open to the public.  Council adopted the Long Term Plan 2018/2028 at their Council meeting held Tuesday 26 June 2018.  Moved by Smith/Wethey, carried.

So far, so good.  The recital above suggests very strongly that the higher level MCP projects were confirmed in more detail in the LTP 2018/2028.  It also suggests that the LTP included details of how the MCP projects were to be scheduled and funded, (See emphasised text above.)

A KDC letter of 9 September 2019 advised:

The Mangawhai Community Plan (MCP) was adopted by Council on 28 February 2018.  Projects were prioritised and budgeted in the current Long Term Plan which was adopted by Council on 26 June 2018. 

The report presented to the KDC last week at the briefing meeting last week also states:

The projects identified by the MCP were included in the 2018 Long Term Plan.

Statement untrue
The problem is that most of the above is untrue. 

The consultation document for the LTP 2018/2028 contains few references to the MCP.  On page 14 it lists four options for funding the MCP.  The adopted option was set out on page 11 of Part One of the LTP:

Mangawhai Community Plan (MCP)

Agreed to commence implementation of the MCP from 2018/2019 funded through a 20% district-wide general rate and an 80% differential rate levied on properties located within the Mangawhai Harbour Restoration area.

Under Community Activities on page 45 of the consultation document under What’s Planned, it states in broad terms that over the 10 years of the plan $62.7 million in operating expenses and $7.9 million in capital expenditure is to be spent delivering agreed programmes.  Five different programmes are included, including the MCP, but with no amount is specified for the 5 different programmes.

The actual 2018/2028 LTP has remarkably little to say about the MCP in respect of the details of projects and financial aspects. The MCP is only mentioned 5 times in the whole Plan, and then only in passing references.

There is the funding detail referred to in blue above.  Interestingly there is no mention of funding through the NZTA either in the consultation document or in the LTP itself.

In Part One there are also vague references on page 44 and 46 referring to implementing the MCP “as budgets allow”, and similar vague references on page 179 to implementing or developing various “infrastructure projects” in the MCP.

On page 187 of Part One of the LTP there is reference to the capital expenditure for the Wood Street development for the first three years of the Plan.  There is also reference to capital expenditure for Pearl Street to Sellars Reserve (Heads Loop) walkway for the first two years of the Plan, but without a specific figure being stated and without mention of the MCP.

And that is it.

In short, the KDC failed to make the MCP part of the 2018/2028 LTP.  It failed to include detailed information relating to each project, the options, the time-frame adopted, detailed costings and funding etc, as required by the LGA 2002.

The plan therefore sits in a legal limbo or no man’s land.

It seems to me that the KDC staff have realised this fundamental omission and are now glossing over the failure to comply with due process.  They are misrepresenting to elected members that the MCP has followed the statutory procedure and that it has the appropriate legal status.

The briefing document presented to the KDC elected members last week sets out details of funding that the document states is included in the current LTP.  Examples are $2m for shared paths, and detailed funding for parts of the Heads to Village shared pathway,  I can find no reference to any of these (except Wood Street) in the LTP.  

No consultation
The nub of the legal issue is that the KDC has not legally consulted with the community on the MCP via an LTP.  An LTP, and all the proposals that it mandates, has to go through the special consultative procedure under section 93A of the LGA 2002.  This requires the KDC to provide all the details of the MCP required by the LGA.  These are broad and demanding requirements that cover the various details of the proposals, the various options considered, costings, funding and budgeting.  The community can only be “consulted” when it has access to all that information.

The KDC failed to do that.  It has subsequently stated that it has “consulted” with the community, but that is not correct in the legal sense of the word under the LGA.  It has sought “feed-back” from the community, but without providing all the information required by the LGA to enable an informed consultation to take place.

As an example, at last week’s meeting a KDC staff member stated that feed-back from the community was that two roundabouts were preferred in the Village rather than one.  That was accepted as fact by the elected members, no doubt on the understanding that KDC staff had followed the correct legal procedure.  They had not. 

What next?
The elected members need to get some very clear answers from the chief executive and the KDC lawyers to see how they can extricate themselves from this mess.  None of the projects under the MCP can proceed until a proper legal basis is established.

Fortunately the meeting last week was only a briefing session.  No decisions were made by the elected members.  There is still the opportunity for correct procedure to be followed by the KDC via an amendment to the LTP.  That will trigger the special consultative procedure and proper consultation with the community.

The KDC elected members might take the opportunity to reconsider whether the expenditure under the MCP and whether the extra financial burden placed on the community is appropriate in the post Covid era.

The Mangawahi Focus' report on the KDC briefing can be seen here.

SHARED PATHWAY FROM THE HEADS TO THE VILLAGE   07.07.2020
The KDC is under considerable amount of pressure from the community to make this shared pathway a priority.  As a result the KDC has come up with an estimate of $16.8 million which will be allocated over the next four LTPs.  That is from 2018 to 2030.

It is unclear how long construction will take.

It was revealed at the briefing meeting (see post above) that a Business Case has been submitted to NZTA for partial funding (61%).  It is uncertain at this stage how the balance is to be made up.  There was talk about using Reserve Contributions for the parts of the pathway that cross reserves.

I am concerned that in their eagerness to get this project on the road, the KDC staff have not given adequate consideration to what is actually required to construct a shared path over this route that meets all safety requirements.  There seems to be a lack of knowledge as to how such shared paths should be constructed.  The pathways are to be used by all users, pedestrians, cyclists, mobility devices, electric scooters, etc.  The only consideration appears to be that the shared path is 2.4 metres wide so that 61% funding can be obtained from the NZTA.  There is apparently no concern how all of those users will cope – safely - with the shared usage.

In countires like the Netherlands and Norway, where shared use paths are common, there are strict regulations relating to separate lanes, minimum widths, speed limits etc.

I am surprised that there was no mention at the briefing meeting of the recent Resilio Report on the Coastal Walkway dated May 2020.  

After the Alamar Reserve fiasco, Resilio has gone back to the drawing board and come up with a more detailed consideration of the proposed Coastal walkway.  The report considers each stage of the walkway in considerable detail.  Relevant here is the shared use path from MAZ across the causeway to the Village.

Unlike the other stages, there is little detail about this stage (page 76).  Under Community Considerations and Ecological Constraints it states that the path should be concreted for the whole way, and that “there are limited opportunities for continuing along the water’s edge”.  Under Cost Considerations it warns:

  • Involvement with roadway so will require more intensive design.

  • Structure across main arm of the estuary will be expensive

Under Technical complexity

  • Concrete or aggregate walkway alongside roadway adds complexity due to safety considerations such as buffer zones, safety barriers between pedestrians and vehicles on a main arterial road.

  • Connection of a structure to bridge or widening of road bridge required to achieve a consistent level of service for this section of the walkway.

  • Retrofitting of road bridge may be required.

The Resilio Report also sets out the specifications for safe shared pathways.  The diagrams on page 13 show that the minimum width of a shared pathway for multi-use – including cyclists in both directions - is 4 metres.  That makes the development of this stage even more complex.

KDC staff need to take a close look at what Resilio is saying about safety, and take steps to ensure that the shared walkway that is proposed is safe and fit for purpose.

Summary
This is an important issue for the community.  The KDC has fumbled the ball by failing to include details of the Mangawhai Community Plan in the 2018/2028 LTP (see post above). That will have to be remedied.

In addition, this shared path project needs very careful planning.  The space for a shared path is tight along most of the route and close to the water’s edge.  It may need to built in part over the water.  It will need to be of adequate width for a safety barrier (being on a main arterial road), and for all users to use the path safely.

COUNCIL BRIEFING ON THE MANGAWHAI COMMUNITY PLAN  29.06.2020
The Mangawhai Community Plan was largely the work of consultants with minimum input from the community.  It is what is called a “high level” plan.  That means that it had very general proposals with no details how they were to be implemented, a vague time-frame, and very little about costs and the source of funding.

It had to be filled out at a later stage after consultation with the community.

Details were supposed to be included in the 2018/2028 LTP but there are only very vague references to it.  

We had the unsavoury episode last year when KDC staff tried to put a cycle/walking track through the centre of Alamar Reserve, while stating, quite incorrectly, that it was what the community wanted. 

After protests, the KDC went back to the drawing board and has now come up with proposals for priority works and details of how the plan is proposed to be financed.  These proposals are to be put to the elected members at a briefing meeting In Mangawhai this week.  The community is invited to attend.

A copy of the briefing document can be seen here.  Note that the meeting starts at 10:00 am on Wednesday 1 July 2020 at the Club in Mangwhai Heads.  While it is open to the public, it is strictly a briefing for the elected members by the KDC staff.  So those in attendance can observe but not partake.

Some thoughts about Mangawhai Community Plan ............

KDC HAS LEARNED NOTHING  29.06.2020
Despite the rebuff from the community last year and the huge financial crisis brought about by the Covid epidemic, the KDC has come out of lock-down with its plans and proposal for the future all intact.  It very reluctantly reduced the rates, slightly, but it motors on with its grandiose schemes, totally oblivious to the new world that Covid 19 has created.  And, bear in mind that we still do not know the full extent of the financial carnage facing the country and our communities.

Now is the time for wise heads, for pulling back from excessive spending, for cutting back on unnecessary projects.  It is a time when our elected representative should be demanding that the financial burden on ratepayers is reduced, not added to.

The Mangawhai Community Plan has not been touched by Covid.  Originally it was a questionable project full of some whacky proposals, but in the new world facing us it seems to be totally out of place.  The KDC consultants have not skipped a beat and with the KDC staff are corralling us into adopting  proposals that we may not want, that may not be what they seem to be, and are going to cost us much more that we have been told.

This is not a free feed.  So far the KDC and its consultants have been very shy of revealing the cost of the promised goodies.  They are now trying to remedy that with the Briefing meeting referred to above.  They will try and convince you that others like the NZTA will fund a large part of some of the proposals, but whatever they promise, you can be certain that it will, in the end, cost you personally considerably more.

You need to ask yourself if we really need the proposed Insley Street roundabouts at this particular point of time.  Is there really a problem that needs fixing?  Is the proposed solution going to fix that problem, or will it create more problems of its own?

The coastal walkway is a luxury and fantasy.  How many of us feel it essential that every person should be able to walk or go by mobility vehicle along every inch of our coastline?

Shared pathways for pedestrian and cyclists are all the rage.  Loved by consultants and keen cyclists, but only in the abstract.  The reality is that the shared pathways in Mangawhai, being built at huge cost, are inviting major safety issues for the future. 

I hear the elderly saying that they want safe footpaths, or mums and dads appealing for the same to ensure that their children are safe from cars.  But the shared pathways being built are the minimum 2.4 metres that is funded by the NZTA.  They do not have a line down the middle separating pedestrians and cyclists.  They are disasters waiting to happen.

The desired minimum width for safe shared pathways is 3.5 metres with an absolute minimum of 2.5 metres.  That is with a line down the middle indicating separate use for pedestrians and cyclists.  Even that minimum width is questionable.  Measure what width a couple walking side by side take up.  (1.25 metres is a tight fit.)

In most parts of Mangawhai it is not even feasible to have 2.4 metres wide shared pathways because of the narrowness of the existing roads.  But that does not concern the consultants.

World-wide experience shows that narrow shared pathways are dangerous unless they are wide, separate use is delineated, and there is a speed limit for cyclists, scooters and motorised vehicles.

Be careful what you wish for.

MANGAWHAI CENTRAL LINK  25.06.2020
Details of the Mangawahi Central consent and plan change applications can be seen here .

The Commissioners' consent for the supermarket etc can be seen here.  

ACTIONS SPEAK LOUDER THAN FANCY WORDS   22.06.2020
In the latest Mangawhai Focus, Mayor Smith's penchant for self-promotion comes bursting through.  He is highly critical of the Electricity Authority’s Transmission Pricing Methodology (TPM) and is “taking the fight against this injustice to the next level”.

Effectively, those in the North Island will be charged more for power because they are further way from the source of the power.  He is quoted as saying:

Large pockets of Northland are deprived and poor and energy poverty is very real in the North.  It is a major problem and people are already struggling to survive financially, particularly on the back of Covid and the severe drought we have experienced.  Heaping more economic stress on people could have dire impacts on wellbeing,

Absolutely right.  But, sadly, when in comes to the "deprived and the poor" in Northland and the issue of rates, Dr Smith takes a completely different tack.  He ignores the incredibly high level of rates in the eastern part of the Kaipara district, the high annual increases, and the significant post Covid increases.  He scrapes the barrel of poor arguments to justify increases that are simply not acceptable in the new world that we are facing.

The Mayor’s Memo in the same edition of the Mangawhai Focus contains his justification for rates increases that are even more unwarranted that the TPM increases.  He suggests that the in a “rapid response” to Covid the rates were “substantially revised downwards”.  In fact they were very reluctantly reduced by a mere 1.5%.  And that is just an average.  Those in the east will pay significantly more than the average increase.

He trots out again the overworked threat of impending roading disaster if rates are reduced:

“Any rates increase less than 3.97% would certainly mean worse roads for Kaipara people and that would be very impactful and negative.  At a time when so much progress has been made that would set Kaipara back years.  Council has left no stone unturned in seeking improvements of our roads, including getting extra government money from the Provincial Growth Fund as part of the Kaipara Kickstart Programme announced in Feb 2019.  Now is not the time to turn away from progress that’s being made here.  Instead we are taking a balanced view for our way ahead.

Absolute rubbish.  A balanced view?  Think of the wastage.  Several million dollars spent on pursuing Bruce and Heather Rogan to recover just over $5,000 in penalties that were not legally justifiable.  The failure to disclose why departing chief executive Graham Sibery was paid $240,000 as a bonus salary entitlement after just over a year’s employment in circumstances that suggest a serious mismanagement of money.  The empire-building and secret decision to be part of the NRC’s Kaipara folly in building new offices.  How about the plethora of staff and consultants who are soaking up millions of ratepayers’ money pursuing fantasy projects unwarranted in the post Covid era.  Then there is the spectre of the secret deal done with Mangawhai Central which has all the hallmarks of another EcoCare disaster for the community.

The highlight of absurdity was reported in the Lifestyler of 9 June 2020.  The KDC made a very bold move to reduce rates to respond to the chilling financial effect of Covid on the community:

 To reduce rates for the 2020/2021 year, the council looked for areas where it could reduce costs,”

So what did it do?  It decided to abandon the mowing of residential berms as a cost-cutting measure to "drive down rates".  So residents now have to mow their own berms.  If they are unable to do so, they have to pay someone to do it.

The last word belongs to those who signed the Open Letter to Kaipara District Council in the Letters to the Editor section of the Mangawhai Focus.

The letter opens with:

We, the undersigned, have major concerns about what is happening in Mangawhai as the economic effects of the pandemic roll through our community, noting that Kaipara Council rates are already a heavy burden for many local ratepayers.

Despite being advised that local economic activity is expected to reduce, Council has still voted to increase everyone’s rates by 4 per cent.

We heard about various business sectors of the local economy and what KDC is doing to support them financially, while increasing ratepayer rates.  The $1.25 million council is forgiving rates – or subsidising businesses and other groups in the form of hardship packages – would go a long way toward a zero rate increase.

In summary, the letter states:

We are a concerned group of ratepayers who have had enough.

We call on Kaipara District Council to:

1. Implement no more than a zero-percentage rate increase for the 2020/2021 rating period.

2. In this time of unprecedented economic uncertainty, reduce services to the essentials.

The letter is signed by:  Debbie Aislabie, Joel Cayford, John Duffin, Ken Fountain, Sue Fountain, Matt Guzik, Simon Hardley, Ross Hinton, Colin Leach, Doug Lloyd, Ian Margan, Adam Minoprio, Peter Nicholas, Darryl Reardon, Kevin Stirrat, Neil Tolich.

The new rates are due to be set at the Council meeting in Dargaville on 24 June 202 at 9:30 am.  Under the Local Government Act 2002 the annual plan must be adopted  prior to 1 July 2020.

MANGAWHAI CENTRAL SUPERMARKET CONSENT   18.06.2020
Normal procedure took a bit of a beating in the application by Mangawhai Central Limited (MCL) for consents for a supermarket, Main Street, roads, subdivision etc.  The consents all breach the rules of Chapter 16 (Estuary Estates) of the current operative District Plan.  But they do accord with the proposed changes to the Plan under PPC78.  But that is only a proposal.  It had no status in law.

The appropriate procedure was for the MCL to apply for a plan change, and if that was successful, to apply for the resource consents based on the amended District Plan.

However, the parties – MCL and KDC – agreed to hijack the appropriate procedure by applying for the consents before the plan amendment was approved.  The consents were all granted.

How did they get away with it?

The decision is located as shown below.  I found it buried deep in the KDC website but access appears to be limited by the KDC.

https://kaipara-my.sharepoint.com/personal/sjones_kdc_kaipara_govt_nz/Documents/190282%20Decision/190282%20decision.pdf

The Commissioners stated in their decision:

10. According to the Applicant, the site has not been developed due to the very prescriptive and rigid planning provisions which required a very specific form and scale of development.

The Commissioners relied on the submissions of Mr Gordon, legal counsel for Mangawhai Central limited (MCL) that Chapter 16 of the District Plan, relating to Estuary Estates, is seriously flawed.  This view was also shared by others:

11. Mr Colegrave, the Applicant’s economist, Mr Munro, the Applicant’s Urban Designer and Mr Tollemache, the Applicant’s planner, all addressed the flawed nature of the District Plan as submitted by Mr Gordon.  We have relied on the evidence of those experts, as well as the Council’s experts.

Note how the representatives of the parties have been treated as independent expert witnesses whose opinions can be relied on.

The Commissioners acknowledged PPC78:

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.

Not considered, but coincidentally the consents were granted in line with the PPC78 proposals.

If you have a look at Activity Status on page 5 to 12 you will see that most of the proposals in the consent application were non-complying with the operative District Plan.  The subdivision consents on page 12 were also inconsistent with Chapter 16.  The consents were treated as a non-complying activity (para 18).

The Commissioners ruled that the proposal would have no more than minor effects on the environment (para 20).  They also held that although the proposal was not consistent with a number of the rules in Chapter 16, the implementation of those rules would result in an unsustainable development.  Also, the proposal was consistent with the District-wide policies in the District Plan associated with the natural and urban environment, or growth management.

Mr Chandra for the KDC recommended that the application be granted consent subject to a suite of conditions.  Unsurprisingly, in this mutual back-scratching exercise, those conditions were accepted by MCL.

Community challenge

What this decision means in practice is that the hearing of PPC78 will, to a large extent, be a rubber-stamp exercise.  With the KDC having endorsed every aspect of the consents, with the same Commissioners hearing the PPC78 application, and with consents having already been granted for some aspects of the development under PPC78, there is little room for the community to challenge the outcome.

Jo Gough was one of the three objectors.  The Commissioners dismissed her concerns as follows:  

54. With respect to Ms Gough’s submission, while we acknowledge her concerns (which are essentially that the scale and pace of development is inappropriate) we find that ‘the horse has already bolted’.  Significant development is provided for in the District Plan in this locality (Chapter 16 – Estuary Estates).  This has been addressed above, and as set out in the legal submissions and evidence, the Applicant is proposing a much smaller development than prescribed in the District Plan.  We note that the District Plan provides 17,000m2 of retail/commercial GFA while this proposal is for 6,225m2 , consisting of 3,260m2 of retail/commercial and 2,965m2 for the supermarket.

The horse may have bolted in respect of the retail/commercial areas for which consent has now been granted, because they are smaller than the development prescribed in Chapter 16 of the District Plan.  But the number of residential lots, and the capacity of the infrastructure to support them was not part of the supermarket consent process.  That horse is still in the stable and open to challenge. 

The maximum number of residential sites under Chapter 16 is 500.  There is no limit under PPC78 although the figure of 1,000 is mentioned in one of the reports.  The reality is that there will be many more.  Some suggest as high as 1700.  So the residential development will be much greater under PPC78.  That means that the community still has the opportunity to establish that such a huge development will spoil the amenity values of Mangawhai, and that there is insufficient infrastructure to support such a development.

We have two further opportunities to make our case.  First, when the KDC publishes a summary of the submissions on PPC78, the public will be invited to make further submissions on the points raised.  Second, we will have the opportunity to have our submissions heard at the hearing before Commissioners.  This is anticipated to be later in the year.

KDC/MCL SECRET DEAL  18.06.2020
At the KDC council meeting of 27 May 2020 the elected members considered, in public excluded, the Mangawhai Central Development Agreement Draft one.  This agreement is also mentioned in various reports attached to the PPC78 and the supermarket consent.  It is the sweetheart deal which sets out the favourable treatment being afforded to MCL by the KDC. 

If you do the maths on the proposal, MCL is going to make a very tidy profit on the sale of so many lots and the KDC is going to score nicely from the fees and financial contributions from all of those consents.  The development's effect on the community seems to be a distant consideration.

Elected members cannot reveal the details of the secret agreement because the item was public excluded.  The mayor and deputy, along with the chief executive are using the ploy of claiming commercial prejudice to justify the secrecy.  But we do know that a deal is being done in respect of financial contributions.  This is what the Commissioners' decision on the supermarket consent had to say:

25. Mr Chandra also advised that all of the conditions and advice notes he recommended be imposed if consent was granted, had been agreed with the Applicant.  These included the issues relating to financial contributions and development contributions – and that the Applicant and Council are in discussions regarding a “Private Development Agreement” to determine the level of contributions that will be payable.

The expectation is that lots in the new development will have a bulk discount when it comes to development and reserve contributions, while other private developments will still be subjected to the full treatment by the KDC gouging machine.

"PUBLIC SLAM MANGAWHAI PLAN" 18.06.2020
That is the headline in an article in the Mahurangi Matters relating to the submissions on PPC78.  It appears that there were 208 submissions and 198 opposed the proposal.  Andrew Guest may have sweet-talked his way through the various public meetings when Mangawhai Central was launched, but his subsequent silence and his faiure to consult or advise have made the community realise the pitfalls of the proposal. Now that he has the KDC firmly under his control, tied up with binding legal agreements (as was predicted), the good will of the community is no longer necessary.

COASTAL WALKWAY AND ALAMAR CRESCENT 17.06.2020
While the rest of us are licking our wounds following the emotional and financial outfall from covid 19, the KDC planners are back on deck launching into the coastal walkway aspect of the Mangawhai Community Plan (MCP) as if nothing has happened.

What seemed an unnecessary and pointless exercise then, has become even more questionable in a post-covid world.

The KDC has spent lock-down dreaming up the latest version of the MCP, but so far, only in relation to the continuous coastal walkway. During that time the KDC and its consultant Resilio have final seen sense to a certain degree. The “continuous” coastal walkway is no longer continuous. Following a feasibility study and a consideration of costs they have finally realised that having a continuous walkway along every metre of the coastline was nothing more than a pipe-dream.

The KDC has abandoned the idea of community consultation. It maintained that the original MCP of 2017 was community-led and that the final plan was based on the wishes of the community. That was never correct, but even that pretence has now disappeared. The latest document dated May 2020 is the Mangawhai Coastal Walkway - Summary Document - HIGH PRIORITY ROUTE SUMMARY. The document suggests that the new proposal for each stage of the walkway and the new priority given to each stage arise from consultation. Rather, they are the superimposed views of the consultant and the KDC.

However, the community gets its say in appointing two community representatives who live alongside each stage of the walkway to be part of the old Commissioners’ panel that was responsible for the original plan. That super-panel will make the final decisions for each stage, and that will then be opened up to the community for comment.

The new proposals and the new priorities can be seen here

It appears that the boardwalk from Picnic Bay to the Wintle Street Reserve, across the rocks, has been abandoned.

It is unclear what is intended in Alamar Crescent including the grassed Reserve and the boat ramp by the campsite. The new proposal is short on information but the fact that it states that a resource consent will be needed suggests that the most ridiculous proposals such as building a concrete walkway ramp across the boat ramp in Alamar Crescent and bisecting the Alamar grassed reserve with a 2.4 metre wide cycle path walkway may still be planned.

The document states ominously:

Project Challenges

Community support - The local community (primarily focused around Alamar Crescent) have demonstrated resistance to change within this section of the walkway.

The truth is that the whole of Mangawhai and the visitors to Mangawhai are opposed to the KDC’s crazy ideas. There is absolutely no need for any work to be done in Alamar Crescent. All it needs, at the very most, is a few new “wayfinding markers” to identify the route of the walkway and that is it. No need for Resilio and no need for the KDC staff who try and impose unwanted and completely unnecessary proposals on the community.

Bruce Rogan is one of the community representatives for Alamar Crescent. He is seeking input on what the community wants for the Alamar Crescent stage of the coastal walkway. It is difficult task because we do not know what the KDC is proposing. And, as usual, there is no indication of cost, and how much ratepayers will have to pay.

But is you want to have your say at this early stage, Bruce can be contacted at either 431 5413 or 02108180162 or brucerogan2017@gmail.com

WHO MAKES THE DECISIONS ON MANGAWHAI CENTRAL?  16.06.2020
In a previous post I suggested that Mangawhai Central is a done deal, a fait accompli.  There is still a lot of water to flow under the bridge with proposed plan change 78 still to be heard and decided, but the direction of the flow is - if I can mix metaphors - already set in concrete.

The decision whether to go ahead with Mangawhai Central, as proposed, is one of the biggest decisions facing Mangawhai since the EcoCare debacle.  It is even more important because it will affect the whole character of Mangawhai as a delightful coastal township and, if allowed to proceed as proposed, is likely to turn it into and overcrowded metropolitan suburb with a lack of infrastructure.  The costs to current residents to fund the infrastructure needed for the proposal have never been revealed.  

If not handled properly, the development has the potential to be an even greater disaster than EcoCare.

EcoCare was all done in secret with a shonky chief executive, incompetent consultants, a devious developer, and elected members who fell asleep on the job.

Is that going to happen again?

Who is responsible for the KDC’s almost total endorsement of the proposal?  Who is looking at the big picture and representing the best interests of the community?

I asked one expert: Who is making the decisions for the KDC in respect of the Mangawhai Central development?  The response was quick:  “Andrew Guest”.

Funny, yes, but sadly it may be not too far from the truth.

Let’s work backwards.  We know it is not the elected members, at least not the councillors.  Some of them did not even know that the application for a consent for the supermarket etc was advertised just before Christmas last year (in the LIfestyler but not in the Mangawhai Focus).

That only leaves the chief executive and her staff.  That would mean the planning and consent staff.  The chief executive herself can have little input because, I presume from her HR background, that she has no experience or expertise in assessing such a critical development.

The planning and consent staff do not look at the big picture, whether the proposal is desirable and appropriate for Mangawhai, or in the best interests of the community.  They look at it strictly from a narrow RMA (Resource Management Act) point of view:  Does the proposal meet the requirements of the district plan and the RMA?

Even that examination is not objective.  Planning and consenting in New Zealand has become a game.  The RMA has been used and abused to achieve ends that were never intended.  It has become a tool for avaricious local authorities to gouge money out of their communities.  There is also a power struggle that has been won by expert consultants.

In a proposal such as this, the applicant assembles an army of the top consultants in the county who bombard the local authority, and commissioners who are appointed, with a mass of reports supporting the proposal.  The local authority’s staff have no chance.  They know they are outgunned.  They know that the reports from the applicant’s consultants will be treated as independent expert reports and will invariably be adopted.  They surrender abjectly.  There are a few minor rebuffs, accepted by all parties, just to pretend that the process is kosher.

So, how do we stop this happening?  How do we ensure that in the hearing for plan change 78 the commissioners are obliged to consider the views of the community?

The first step is to encourage the elected members to assume the powers that are vested in them under the Local Government Act 2002 and in the KDC’s own Local Governance Statement 2020.  

That document sets out the role of the elected members.  In short they are the decision-makers of the council.  With relevance to this issue, they are responsible for the following:

  • representing the interests of Council

  • formulating Council’s strategic direction and relative priorities through the Long Term Plan (LTP), which determines the services and activities to be carried out by Council over a 10 year period

  •  overseeing, developing and/or approving all Council policies, administration, legal, financial and strategic including formal regional, city and/or district planning matters within Council’s geographical area of responsibility

In the post below, Greg Gent suggested that the elected members have a duty of care towards the community, and that it is the responsibility of the mayor and deputy mayor to ensure that all councillors understand the nature of their role and that the opportunity for training is provided.  That is clearly not happening with the present council.

In contrast, the chief executive is responsible for implementing the decisions of the elected members and providing advice to them. 

The problem with the KDC is that the chief executive and her staff have usurped the role of the elected members, no doubt assisted by a dominant mayor who appears to have scant regard for the rules of good governance.  In most instances the elected members are expected to simply rubber-stamp the advice from the  KDC staff.

There are blatant matters of concern in the Mangawhai Central proposal that scream out for further consideration.  These include the lack of a maximum number for the proposed residential sites, the lack of provision for schools, for sports fields, recreation, green areas etc.  Then there are the fundamental infrastructure issues.  KDC staff have stated that there is adequate capacity for wastewater treatment at present to cope with Mangawhai Central.  We all know that that is not true.  Likewise the capacity of the aquifer and harvested water to provide a water supply has not been established.

It would be appropriate for elected members, without the mayor, to form a sub-committee to consider not only the obvious shortcomings of the KDC staff’s conclusions, but also the broader picture of the Mangawhai Central proposal to see how it should be modified to ensure that the best interests of the community are protected.  The chief executive can then be instructed accordingly.

We elected our representatives to act on our behalf.  The least we can expect is that they be allowed to perform their statutory duty and support the community in ensuring that Mangawhai Central is an asset in the future development of Mangawhai, and not something like EcoCare that we will regret for generations.

RATING AND GOVERNANCE ISSUES IN THE KDC 09.06.2020
How refreshing to read a post from a KDC Councillor who understands his role as an elected representative and makes his mark in the sand over rates rises.

In Facebook posts and in the Mangawhai Focus, KDC Councillor Jonathan Larsen (the “Workboot Councillor”) has offered his views on the relationship between the elected representatives and ratepayers and his views on the incessant and unjustified KDC rates rises.

He believes that the interest of ratepayers should be paramount: “Fundamentally I believe that the Council should be run for the benefit of the ratepayers (its “shareholders”).”

There is little doubt that that our elected representatives have been sidelined by the current regime under Mayor Dr Smith, just as they were sidelined, for those who remember, by the dreadful McKerchar/Tiller regime that was responsible for the financial problems that the KDC still faces today.

Councillor Larsen’s comments bring to mind similar comments made by the Review Team in 2012 in its final report when it recommended to the Minister of Local Government that the KDC elected council be replaced with commissioners.

The Review Team consisted of Leigh Auton, Peter Tennent, with Greg Gent as chair. Greg Gent was subsequently elected Mayor and served in that role for short period. He was appointed an Officer of the New Zealand Order of Merit (ONZM) for services to the dairy industry and corporate governance.

For those who know little about the awful period in the KDC’s history the whole document is worth a read. Many will say that it should be confined to history, but others will see that the KDC of today has many of the same issues as the KDC of 2012.

In respect of governance and how a local authority should operate, the report had this to say:

24. A fundamental element of the governance responsibilities of a Council is to set policy. In this regard a council’s role is to decide what it should be doing. At the heart of this is the dichotomy between governance and management. The elected members set the policy and this is implemented by the Council’s employees, led by its chief executive. While management provides advice and makes recommendations to elected representatives, it is the councillors’ responsibility to make decisions and to test the veracity of advice it is receiving. If decisions are made based on flawed advice, the elected members are still responsible for that decision.

The report considered that there here was failure of governance within the KDC:

26. At the heart of this failure there appears to be a poor understanding amongst councillors of what the governance role of elected representatives is. Councillors spoke to the Review Team about not having received governance training (although there is evidence that some has been provided). Others spoke about not fully understanding their governance role. It is the responsibility of the leadership of the elected representatives – the Mayor and Deputy Mayor – to ensure all councillors understand the nature of their role and that the opportunity for training is provided.

27. It is apparent that the Council’s elected representatives have relied heavily on the advice and direction of the Council’s Chief Executive. The Review Team has been told that the previous Chief Executive was very judicious in what information he presented to the elected representatives and that in many instances they were making decisions based on inadequate information. However, an elected representative is obliged to ensure they have sufficient information to make informed decisions, and as the employer of the Chief Executive can direct him/her in this regard.

28. An example of this is the financial information that has been provided to the elected representatives in the past. It is the view of the Review Team that it would not be possible for the elected representatives to discharge their fiduciary duty in relation to the Council’s financial management with the information that they received. Or put another way, it would be impossible for the elected representatives to adequately exercise their duty of care to the ratepayers of Kaipara.

In respect of the community’s relationship with the KDC:

35. Effective local government requires communities being afforded opportunities to participate in Council processes and the decisions that most affect them. This relies on there being a level of trust and connectedness between the community and its Council – both its elected representatives and officers.

36. From the Review Team’s meetings with interest groups and community representatives it concluded that in the Kaipara district there has been a fundamental breakdown in the relationship between the Council and the community it serves. A community member spoke of a ‘festering climate of mistrust in both the governance arm and the management arm of the Kaipara District Council’. People spoke of a lack of transparency in the Council and said that they were not provided with timely or accurate information. The perceived failure of the Mayor, Deputy Mayor and Councillors to front meetings with the community was seen as a serious problem.

As a final comment, which resounds as much today as it did in 2012:

38. Restoring this relationship between the Council and the community is fundamental to addressing the problems the Council is facing. It is arguable that no solutions to any of the Council’s problems, regardless of how technically sound they are, will be tenable unless there is buy in from the community.

See earlier posts