Archives: 08.04.2015 to 23.02.2016
ESCAPING LIABILITY 23.02.2016
More and more we are learning that under John Key’s version of democracy it is almost impossible to hold those responsible for substantial incompetence if they belong to the upper, and protected, echelons of society.
We have seen how name suppression is generously made available to those whose reputations are at stake, while the person on the Citylink bus (the updated version of the “the man on the Clapham omnibus”) invokes no such sensitivity.
We have seen how John Key, aided by the courts, built a wall of secrecy around the charges facing MP and would-be Cabinet Minister Mike Sabin. The prohibitions on publishing any indication of the type of charges he faces have terrorised the local press into docile compliance that would draw the envy of many despots around the world.
We now read that one of the worst engineering failures in New Zealand history is being given the treatment. See the NZ Herald’s Olivia Carville: Frustrated families await justice. The attempt to bring to justice those responsible has become a pit of snarling vipers hissing at each other, with no fairness, no justice ever likely to emerge. Those responsible will be allowed to slope off into the shadows leaving the ordinary people of this country, and the foreign families of those who died wondering what sort of value system we have in New Zealand.
Those living in Kaipara will be accustomed to the situation. We learned long ago that we were being ruled by a crooked Council that basically threw the rule book away and simply plundered the local ratepayers and enriched those who were driving the EcoCare Ponzi Scheme.
The government in the guise of its local government watchdog and auditor, the Office of the Auditor-General (with its side-kick Audit New Zealand), the government appointed Ombudsman, and the Minister of Local Government, all turned a blind eye to the rort what was going on. They all stated meekly that the blatant illegalities of the Council in every aspect of the EcoCare rort were not unlawful until a court decided they were. In so doing they allowed the Council and the rorters totally liberty to continue its pillage of Kaipara for many more years.
We all know the outcome. Like FIFA, the incompetence and lawlessness in local government is simply too big to tackle. Local government in New Zealand is a complete farce. Local authorities act outside the law with impunity - Auckland with its unconsulted high-density housing foray - because they know that the Auditor-General still has quite a few years left of her Sleeping Beauty sleep, because the government (read Big Business) wants councils to have unlimited power to do whatever they want, because the cost of legal proceedings is beyond the pocket of virtually everyone in the country, and, even if one has the money and the fortitude to take a gamble on the court system, the courts seem too timid to bring the outlaw juggernaut to a halt.
DEMOCRACY FOR KAIPARA? 04.02.2015
Will John Key return democracy to Kaipara or will he continue the junket of Honest John and his crew for a few more years?
The rule of the unelected commissioners comes to an end in October – just 8 months away. Their rule was supposed to end last October, but the Associate Minister consulted (with blinkers on) with commissioner supporters only and decided to keep them on for another year.
But its crunch time again. Will it be democracy, or will John Key do an Environment Canterbury on us and have a mixed bag of government-appointees and some elected members?
Honest John, operating as usual beneath the murky surface, is already selecting candidates with the right credentials that can be trained up and sponsored in a grab for the democratic seats, while, no doubt, he and his crew will retain the government-appointee seats.
No doubt it will all come out in the next few months. And watch out for the catch words: Robust and stable governance, along with all the smoke and mirrors.
ROGAN HIGH COURT CASE AND DISTRICT COURT CASE 02.02.2016
The KDC v Rogan appeal and the Rogan v KDC and NRC judicial review are to be heard on 9 May in a three day fixture.
If the MRRA appeals the Court of Appeal decision to the Supreme Court then this fixture may have to be vacated until the Supreme Court has released its decison.
DISTRICT COURT STAYED CASES 02.02.2016
The stayed cases that are linked to the Rogan District Court case are still up in the air and a conference of counsel and the Judge will take place on 9 February to decide what happens next. The stayed cases now have different plaintiffs and different statements of claim so it is uncertain how the Court will treat them.
SALE OF WHARFDALE CRESCENT 02.02.2016
Honest John and his crew are continuing to gouge the last pound of flesh out of Kaipara by continuing to sell off what they call “surplus” land.
You will recall that they tried to sell off Sellars Reserve on the estuary in Alamar Crescent/North Avenue and other land around the boat ramps. All the land involved was for the parking for trailers using the boat ramps and the KDC had long ago agreed to designate what is known as Sellars Reserve as a reserve for the enjoyment of the people of the district.
Residents rose up, but after a brief but savage engagement Messrs Robertson, Winder and Booth retreated with bloody noses.
They are still at it, “Beneath the surface”, as Honest John calls it, like three desperate Great Whites searching for anything to get their teeth into.
They have already sold of a few sections, but now they turned their attention to three sections in Wharfdale Crescent in the Heads.
The properties are situated at the eastern end of Wharfdale right on the bend where the walkway goes down to the estuary. It is a deep gully of bush and scrub that incorporates a natural wetland that is home to many species which are up for sale.
The commissioners did not consult with ratepayers on the matter, they simply passed a resolution saying it was not necessary because they are aware of the feelings of ratepayers.
Ratepayers have been slow to stir, but the “Spirt of Mangawhai” is emerging, indignation is mounting, and a counter attack is under way.
THE RATEPAYERS’ CASE 02.02.2016
At the MRRA AGM recently a local resident did a presentation on the Wharfdale properties and the KDC’s proposals. The meeting passed a resolution that a sale of the sections be postponed.
Following is a letter from Barbara Pengelly, the Secretary of the MRRA, to Honest John that sets out a compelling case.
Kevin Pearce has shared your correspondence with him and I noted that you state you are satisfied that you have followed due process in regards to the offering for sale of 23 -27 Wharfdale Crescent. It appears that those three titles are deemed residential at this stage but there have been requests made by concerned residents of Mangawhai to N.R.C. to have this changed, particularly in the hope of having these designated a wetland environment – or at least having number 27 so designated. The necessary survey and decision making has not yet taken place but there is heightened interest in the district that this whole area should become a reserve, particularly now that it appears to be under threat. There has been no consultation with the community.
In the past many people have remained ignorant of the true value of wetlands and consequently many wetlands have been destroyed and turned into pasture. Swamps have been drained and the balance of nature has been destroyed. Wetlands act as a giant sponge by helping to control water flow and quality and are an incredible food source for fish, birds and eels. They are important to Maori as they are host to raupo, flax and purei. These plants produce large populations of aquatic invertebrates, as well as worms and birds, such as the national threatened spotless crake and matuku.
I would ask that the sections be withdrawn from sale pending an investigation by NRC as to whether this land is deemed suitable as a reserve as a “unique wetland environment”.
To quote from the NRC’s own site, ”Most of New Zealand’s wetland animals are not found anywhere else in the world. They include fern birds, New Zealand dabchicks, New Zealand scaup and paradise shelducks. Mudfish are also unique. Animals that can only live in wetlands face an uncertain future through habitat loss and/or damage. Many, like the Australasian bittern, pateke and short-jawed kokopu, are now endangered. Conservation and restoration programmes help to provide the habitat they need and ensure our wildlife survives into the future.
If the N.R.C. were to adopt this as one of its wetland projects in Northland, the site could be developed with a boardwalk across a portion of it but with regard to not disturbing the wildlife and it could be a great project that school parties under the supervision of their teachers could get involved in. It would certainly add to the allure of Mangawhai as a varied and interesting environment- host to walking weekends, art trails, golf, bowls, water sports and a unique wetland.
The Chair of the M.R,R.A, Mr Bruce Rogan has already advised you of the outcome of our A.G.M. of 17 January where the 80 odd attendees passed a resolution that the sale of the aforementioned land be delayed pending a full geological and environmental assessment as well as full consultation with the community. Please do not add to the grievances already in place by once more keeping 'the people " out of the loop. I would ask that you reply to this letter offering some reassurance that you do care about consultation and the future of the environment in Mangawhai.
Barbara Pengelly,Secretary M.R.R.A. Mangawhai Heads.
That’s a pretty reasonable letter, no matter what side of the fence you sit on.
So, how did Honest John respond?
HONEST JOHN SPITS THE DUMMY 02.02.2016
Rational, reasonable, eager to show that he values good governance and transparency?
Judge for yourself. This is an abbreviated copy of his letter with the abusive comments removed.
I acknowledge you email.
I did receive the email of advice that you refer to from your Chairman recently.
I note that your organisation currently has proceedings lodged against the Council in the High Court.
Further, I understand that you and your fellow committee members are considering appealing to the Supreme Court following the recent decision by the Court of Appeal to turn down MRRA's appeal against Justice Heath's High Court decisions.
Before I respond to the points you make in your email, can I respectively (sic) request that MRRA call an end to its proceedings against the Council; that it encourage its members to pay rates so that the burden of costs to support matters like roads and public reserves are borne by all property owners; and that your chairman ceases sending rude and dishonest emails to me.……..
Please advise whether the MRRA is prepared to change its aggressive and litigious approach to its relationship with the Council.
In other words Honest John will not even consider any approach on the Wharfdale issue until the MRRA ceases all legal action.
That to me is verging on a desperate attempt to blackmail the people of Mangawhai. Decide for yourself. Here is the definition of blackmail in the Crimes Act with the relevant bits highlighted
(1) Every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent—
(a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and
(b) to obtain any benefit or to cause loss to any other person.
Bruce Rogan of the MRRA has urged all ratepayers to write to John Robertson making their views known. You should also write to the Minister, the Prime Minister and also let local newspapers know to what depths he is stooping.
FOCUS AT IT AGAIN 02.02.2016
Talking of newspapers, it is sad to see that the Mangawhai Focus is at it again. For a short amount of time the editor of that newspaper had a sudden rush of journalistic ethics and refrained from his bigoted and uninformed editorials garnered straight from Honest John’s mouth.
The rush of sanity is now in remission. In the latest edition the Focus reverts to being the propaganda sheet for the commissioners.
I would like to include a link to the offending editorial but it is not available on the website. Perhaps it has been “pulled” because of the amount of critical mail already received.
The editor paints a benign picture of the commissioners trying to resolve the illegal debt problem by “whatever means”. Later in his editorial he fantasises about the missed opportunity to combine the expertise of ratepayers and commissioners and solve all the KDC problems together. The blame, of course, lying with the MRRA.
If he had read this website he might have learned that the commissioners were appointed by the government to enforce the debt against the ratepayers and collect the arears of rates. Take a look at their terms of reference.
He is obviously completely ignorant of the agreement that the MRRA reached with the former Council to form a Council/ratepayer focus group to resolve the illegal rates problems. Bruce Rogan also reached agreement with Steve Ruru that an independent forensic accountant be appointed to examine the finances of the KDC. Within a short time of their arrival the commissioners swept that all aside and unilaterally announced the introduction of a validation bill.
The Court of Appeal stated in its decision that Parliament’s endorsement of the Validation Bill was a clear decision from Parliament that the ratepayers of the district were to bear the burden of the illegal debt single-handedly. That is clearly the policy of John Key’s government and that is what his commissioners have enforced. The dismal failure to hold any other party responsible bears witness to this.
The editor of the Focus clearly favours dictatorships over democracy. This is his logic:
Derisive cries of anti-democratic goings-on are spurious to say the least. Voters had their shot at democracy; they, democratically, elected the council in the first place.
In other words, democracy failed, so dictatorship is the remedy. These are the sentiments of every dictator in human history.
He then loses the plot completely by suggesting that the commissioners should sell off unused land and sell of half the golf course"
That would bring in $30 odd million and “the debt is immediately cut in half and imminently (sic) bearable.
That shows his total adherence to the Government’s line that no guilty parties must be held responsible for any of the debt, but it also shows his complete misreading of the Mangawhai community. People are going to be incensed at his suggestion of selling half of the golf course to meet illegal debts that came about because of the illegal actions and incompetence of others
He then becomes a legal expert and opines that the free legal assistance that the MRRA received has got them nowhere. His expertise comes from the school of life:
I have learned throughout life that anything offered for nothing generally is worth exactly that.
He has either had a miserable life totally devoid of the rewards of generosity and charity or he simply trots out bigoted well-worn platitudes.
He suggests, with the benefit of his accumulated legal wisdom, that in respect of Validation Act:
The MRRA should have challenged the Government over this issue and not the KDC or commissioners who only acted on the Government decision.
Why did the lawyers never think of that? Probably because it was Parliament that enacted the Validation Act (not the Government) and in our democracy (!) no one can challenge a decision of Parliament.
Make you own minds up about the latest offering from the Focus, but if you feel strongly about it then write to the editor and let him know what you think. Until we show what the community thinks of the nonsense that he writes he is not going to change.
MERRY CHRISTMAS AND CONGRATULATIONS 23 12. 2015
It's been a tough year. We started the year with great hopes that our quest to have the rule of law returned to Kaipara would be welcomed by the courts. We have been sadly disillusioned. Honest John has steamrollered right over us and swept all before him.
Neither the District Court not the Court of Appeal apeared disposed to our arguments. Justice de Ridder in the District Court appeared hostile to our cause from the outset and all those who watched his conduct in the court would have had serious concerns about the quality of our justice system.
The decision that emerged from the District Court effectively strips ratepayers of any rights under the legislation, the NZ Bill of Rights Act, and effectively excludes any right to judicial review in respect of local authorities.
It was a flash-back to the Middle Ages, the age of serfdom.
In the Court of Appeal Justice Miller seemed almost mocking of our claim. He stated from the outset that if we were successful the results would be "nuclear" for the KDC from a financial point of view. He seemed to like the phrase and repeated it many times.
The "nulcear" outcome seemed to arise because of his view of what would happen of the KDC was forced into receivership. But he seemed to be unaware that receivership for local authorities is deal with in the legislation and is a very gentle animal compared with normal commercial receivership.
He also pointed out that judicial review was discretionary and one got he feeling that the legal rights of ratepayers were dispensable given the nuclear carnage that the vindication of their rights would create for the KDC.
I understand that there is a small group of ratepayers who are still refusing to pay their rates. Well done you guys for having the fortitude to fight City Hall, the Government and the Courts. And that also applies to everyone who has fought this battle and finally been forced, one way or another, to succumb to the unbearable pressures imposed on them.
No matter what the courts say, I can state quite categorically that our cause is well-founded and legally sound. The rates set and assessed by the Commissioners are as illegal as all the other illegal rates in the past. Parliament set clear obligations that must be followed to the letter if the rates are to create liability on ratepayers.
Likewise the High Court declared the EcoCare loans to be unlawful. The KDC itself may be compelled to meet its obligations under those debts because of the protected transactions provisons under the LGA, however there is nothing in the law of New Zealand that entitles a local authority to step outside the limitations of the LGRA and set a rate for an unlawful purpose. The deeming of the debt to be enforceable against the council - despite the underlying illegality - is strictly a contractual matter between the KDC and its banks and it does not affect the Council's power to set rates within the limitations imposed by the LGRA.
But we will put that aside for the moment and concentrate on the festive season ahead. May I wish all my readers a very Merry Christmas and a happy and safe one, and may I wish everyone in Kaipara a prosperous New Year. Hopefully it will be a year when we can put all the issues to bed and hopefully go some way to removing the monkey of a debt of our backs.
We need to remember that Honest John has only ten months to go and then our democratic council can get in there and do what should have been done years ago. There's a nice thought.
SUPREME COURT DEADLINE 23.12.2015
An application for leave to appeal to the Supreme Court needs to be filed and served within 20 working days of the date of the Court of Appeal decision. The period from 25 December to 15 January is excluded.
The decision was given on 17 December so 5 working days elapse before the 25 December That leaves 15 working days from 15 January which takes us to Friday 5 February.
SOLVING THE KDC PROBLEMS 23.12.2015
Here’s my quick fix for the problems of the KDC.
Historic Illegal Rates
• KDC agrees to credit the vindictive penalties and accumulated penalties and the ultra vires rates (EcoCare rates charged on the “units of demand” for the 2009/2010 to 2011/2012 years and for the 2009/2010 year when service not available on 1 July2009).
• The KDC agrees to set, asses and invoice its rates from 1 July 2016 in full compliance with the LGRA.
• Ratepayers pay arrears of rates.
• Ratepayers withdraw appeal in KDC v Rogan and the judicial review application MRRA and Rogan v KDC. Costs awarded in the District Court are waived.
The vindictive application of penalties “as a lesson” to ratepayers and the entrenched attitudes of the commissioners (no doubt driven by their string-pullers) has prevented this issue being resolved and created a huge amount of bitterness in the community.
A generous approach to the penalties would end the conflict (as ratepayers tried to do a year ago when they tendered their rates without the penalties). The amount involved is miniscule given that any refunds could be dealt with by credits, that the penalties were windfalls anyway, and that the KDC would receive all the arrears of rates. It would also save a fortune in legal costs on both sides.
The ultra vires rates caused the original ratepayer revolt against the KDC. The validation of these utterly illegal rates by the Validation Act was unjustifiable and unconscionable. The amount involved is chicken-feed. A small gesture that would help set things right in the eyes of the community
In respect of the illegal rates processes it is absolutely clear, despite what Judge de Ridder said, that the assessment and invoicing of rates is legally non-compliant. Put that behind us and ensure that in future all the rating processes comply with the law. It is not an onerous task and there is absolutely no disadvantage to the KDC.
• KDC and ratepayers agree to abide by the decision of the Supreme Court in respect of the illegal debt.
• Get rid of the secrecy, suspect panels and predetermined agendas.
• Start at the very beginning by stating the problems, analysing the water, and then looking at a broad range of options including the suitability and viability of the current plant.
PLAUDITS FOR THE MANGAWHAI FOCUS 23 12.2015
I have been extremely critical of the Mangawhai Focus in the past. It appeared to attach itself firmly to the shirt tails of Honest John and simply became a mouthpiece for his propaganda. Its editorials were half-baked homilies that were one-sided and often showed a company ignorance of the facts.
There has been a massive shift. The editorials have gone and now ratepayers are given a huge amount of space to vent their concerns. The letters to the editor section may have gone too far with wordy overstated cases, but even that has served a purpose.
Dr Ian Greenwood was allowed a considerable latitude to state his case and defend his besmirched honour, and in so doing raised many more questions about his attitudes, and the scientific rigour of the advisory panel's approach to EcoCare Mark 2.
Honest John recently shot himself in both feet by babbling on about the lack of evidence of pollution in the Mangawhai Harbour. He seemed totally unaware that this admission undermined the whole approach to EcoCare Mark I and EcoCare Mark 2. As Christian Simon pointed out in the latest letters to the editor, the research into the problem and its causes should come before the solution.
Karen Wooley in another letter makes her point in respect of bovine pollution at Tern Point, but all of us are left asking why no independent research into the problem has ever been carried out. There is nothing like a bunch of incontrovertible facts to resolve the “he said, she said” debate.
There are good letters from Bruce Rogan, from John Dickie and from Christian Simon. Christopher Dickie makes some telling remarks. He dismisses Honest John’s “political spin” that he suggests that no one buys into and adds:
Instead, what ratepayers need to be able to read in the paper is progress on how the Commissioners are honouring the assurance given a year ago of “sheeting home accountability by taking legal action against Audit New Zealand which we [the Commissioners] believe failed in its duties and against the former Chief Executive.”
Spot on. Honest John has produced thousands of words of propaganda during the last year glossing over the cracks and misrepresenting the true financial status of the KDC but has failed to address in any way the fundamental problem of the liability for the debt.
One year on from his announcement about the OAG and Jack McKerchar he has said nothing. He has been allowed to get away with it so far. But it is clear from the columns of the Focus that the ratepayers of the district are very aware that Honest John and his team have failed miserably in this area. He has allowed the culprits to escape whilst carrying on a vindictive campaign against the innocent ratepayers and dumping all liability at their door.
The letter from Philip Scothern is a gem. He quotes Prof Worzel:
"Politics is another modern tool of plunder. Why bother killing useful labour units in order to steal their resources when regulation, negotiation and manipulation can just as readily divest people of their sovereignty, liberty…”
Over the last ten years we have seen the financial resources of the Kaipara community stripped and transferred to all the rogues that were permitted to perform their rorts on the district by the government watchdogs and Ministers. And, as a penalty for our objections to this systematic theft, we have been stripped of our democracy and vindictively dealt to.
Honest John may have all the big artillery and may have forced local ratepayers into submission, but beneath the surface the resentment is huge and that will swell when the books are opened next year and the true extent of the plunder is finally revealed.
Sepp Blatter hung on in FIFA for a long time and looked invincible. The rort appeared to be too big for anyone to challenge.
There may be a lesson in that for Honest John and his team
COURT OF APPEAL 22.12.2015
Apologies to readers for my delay in reporting on the release of the Court of Appeal decision in the MRRA v KDC case which was released on 17 December.
Quite coincidentally the two old warhorses, Bruce Rogan and myself, were both in hospital at the time of the release and were in no position to read the decision, never mind about assessing it.
Bruce was having his other hip replacement in North Shore Hospital, and I was in Whangarei Hospital having tests to identify a viral infection.
We are both now emerging from the wood and can now start look at the latest offering from the Justice system.
I haven’t read the judgment yet. I intend to get on to that today. But a couple of points have already become clear.
• The conspiracy theorists amongst us take it as read that the courts are, along with the troughers, lined up against us, and are intent on ensuring that ratepayers do not use the law to avoid their fundamental obligation in life which is pay for all the excesses and illegalities of local authorities.
To that end it was predicted that the Court of Appeal decision would be released just prior to Christmas so that the decision and the powerful message it was sending to the ratepayers of New Zealand would go ignored by the press, buried in a mountain of Christmas trivia, and would slip by unnoticed.
It is the standard political manoeuvre that politicians indulge in time and time again and was used to pass the Validation Bill in December two years ago.
• A pre- Christmas release would also create real problems for any appeal to the Supreme Court. There is a set time, calculated in “working days” for an appeal to be lodged, and certain days over the Christmas/New Year’s break are not counted as working days.
The problem is that legal holidays extend far beyond the actual statutory working days and it is almost impossible to find over the holiday period a new barrister who has competence in administrative law and the particular angles of this case, and the time to get himself /herself up to scratch, and to file a Supreme Court appeal within the allocated time-frame.
• Add to this the fact that Matthew Palmer, who championed our cause in the High Court and the Court of Appeal, was immediately appointed as a Judge of the High Court after the Court of Appeal hearing. This was quite strange in that he had only been a QC for about 14 months. But what it meant was that our key legal adviser was removed from our team part way through the case. One day he was our adviser, leading the charge and honing our case, and the next day he was gone, out of touch, and had effectively joined the other side. All the money that we had invested in his expertise and coming to grips with the intricacies of our case was gone forever.
That loss is felt severely at this time. Matthew created our case in a way that was good enough to see him appointed as a judge, but, quite bizarrely, all of his submissions were in fact peremptorily dismissed by the Court of Appeal. This fundamental paradox needs an explanation but we have been denied access to the very person who could offer us some sort of insight into what had happened and who could advise on our next move.
• Several people have raised with me why the Court of Appeal decision was released only a week after I advised in a post that the decision would not be released for some time. The facts are clear:
1. The Court advised on 9 December 2015 that it was “unable to provide you at this time with an expected date of delivery”.
2. On 16 December, one week later, the Court advised that the decision would be released the following day (17 December).
I leave readers to interpret the facts for themselves.
So, according to the conspiracy theorists, we have been well and truly shafted, yet again, by a court system that is supposed to treat citizens with absolute fairness.
The ratepayers of the district picked a massive fight when they alerted the authorities to the illegalities of the KDC. We knew that we would be fighting the local government troughers and all those who feed off it. We knew we would be fighting the banks and other vested interests that are protected by all the mainstream political parties that rely on the banks for financial support.
What we did not realise was that we were actual fighting a judicial system that over the years has exposed a soft underbelly which is beginning to look very suspect.
The specific issues of glaring and persistent legal non-compliance raised by the MRRA broadened into a more fundamental and nagging question of whether local authorities are above the law. And, with the delivery of the District Court decision and the Court of Appeal decision, that inquiry has moved its ground. We are now questioning whether the courts in New Zealand are truly independent of the executive, as they should be, or whether they are simply using their judicial discretion to enforce the political policies of the executive to the detriment of the rule of law.
It’s a very serious question. A question that is of the utmost importance for all New Zealanders.
WANT A NEW JOB? 09.12.2015
How about this one?
This what Honest John has to say about Kaipara:
Following a period of Commissioner governance, the Council is now financially sound and has made significant progress addressing historical legal, organisational performance and community relationship issues. It is very well prepared for the challenges ahead in the District's future. Council elections will be held in October 2016. It is planned that the new CEO will be in place to assist in the leadership of this transition and the extremely promising future of the district.
Is that misleading or not?
Just forget the debt (declared to be illegal by the High Court) that will impoverish the district for generations to come, and the cupboards that will be stripped bare of all funds and trust monies.
POLLUTION AND SECRET COMMITTEES 09.12.2013
Forgive me for my ignorance. I thought that the EcoCare Ponzi Scheme Mark 1 was undertaken to protect our pristine Mangawhai Harbour from human pollution.
I wasn’t around when EcoCare was first mooted but I am sure that all the information that was foisted on ratepayers about the need for the sewerage system swung on the fundamental need to protect our Harbour.
The promoters consistently used “Save the Harbour” as the reason for the scheme and emotive words like “eco”, “pristine”, “preserve” etc were freely bandied around and underpinned the whole approach.
I am also certain that just recently, in a series of articles in the Mangawhai Focus, Honest John’s carefully selected advisory panel told us all repeatedly that our Harbour was at risk because of human pollution and exhorted us to support the EcoCare Ponzi Scheme Mark 2.
Doubt has now been cast on the evidence of pollution by the person one would least expect. In the latest edition of the Mangawhai Focus Honest John reveals that in fact there is very little hard evidence relating to pollution of the Harbour, both past and present. This is what he says:
The Council has recently launched a project aimed at closing the knowledge gap on water quality in the harbour. This project revolves around research and testing of the harbour and its tributaries, with the overall objective being to ensure a healthy and productive harbour able to be enjoyed and valued by all.
The initial phase involves understanding testing practices. We need to find out what testing has historically happened, what testing is currently happening and what testing may be needed to ensure sustainable management practices.
You may be surprised to know that little testing has been done in the past; to understand harbour health a systematic and co-ordinated approach is needed that gives us knowledge of trends relating to the harbour’s health. This matter was discovered by the Mangawhai Community Wastewater Panel members who assisted the Council to review the Mangawhai Community Wastewater Scheme earlier this year.
Really? “Little testing in the past”. If that is the case, why was the pollution of the Harbour the fundamental driving force for the EcoCare projects when, in fact, there was no evidence to show that pollution was an issue?
That seems to suggest that the pronouncements about human pollution as the reasons for the Mark 1 and Mark 2 schemes were no more than baseless puffery.
It also seems to add weight to the view that the EcoCare undertakings were not about salvaging the Harbour and all that ecological sweet-talk, but quite simply a rort that was hatched by those involved to enrich themselves at the expense of gullible ratepayers.
“HARBOUR POLLUTION” was the catch-word to suck ratepayers in, both for original scheme and for Honest John’s Mark 2 version.
It also seems that the allegations that any contamination comes from bovine sources, allegations that have been around for many years and which have been persistently ignored, may have some significance when some real, independent research is undertaken.
Beca were involved with the original scheme and Harrison Grierson has fronted the current version. It seems quite bizarre that both should launch into projects, which incidentally are massive earners for their own pockets, on the basis that pollution of the Harbour is the raison d'etre for the schemes, when in fact, as Honest John highlights, there was, and is, little hard evidence to support that proposition.
One would have thought that professionals would have done the research well in advance of making any proposals. Clearly, on the basis of what Honest John is now saying, they didn’t.
That revelation should concern us all, but so should Honest John’s reaction to the situation. He advises as follows:
A further advisory team has recently been established consisting of community members, Iwi, and the Council. The community members are offering their time as volunteers, and have been drawn from the panel of the earlier exercise. The team is also working closely with Northland Regional Council.
Their purpose is to:
* Design an ongoing water testing programme for the Mangawhai Harbour.
* Identify the nature of the water quality issue…..etc
Note that no one in the advisory team is named but the members are selected from the previous advisory panel that was carefully hand-picked by Honest John.
Members of that team did themselves no credit by what seemed to be their slavish adherence to ridiculous terms of reference and the predetermined plans of the commissioners and their advisers.
Many ratepayers are sceptical about the panel’s work to date and this new, secret “in-house” appointment suggests that the inquiry into pollution will be anything but frank and independent.
We all know that the commissioners have so far ignored all suggestions of any pollution being caused by bovine effluent flowing into the Harbour from Tern Point and other places.
We also know that several influential people who support the commissioners live in Tern Point.
It will be interesting to see if the secret panel has the courage to allow independent assessment of the Tern Point pollution or whether they will be steered in other directions.
Question: Why was local man John Dickie not appointed to the new panel? He is one of our foremost experts on water quality and has worked all over the world in that capacity.
STENCH OVER TERN POINT 09.12.2015
There are rumours circulating in Mangawahi about a strong stench emanating from Tern Point which is to the south of the Mangawhai Estuary. Apparently it is not the smell of bovine faeces, as one would expect, but is rather "fishy" in nature. No doubt the Council will expore the provenance of the smell and establish if there is any substance to any of the rumours.
OAG GONG 09.12.2015
Sniffer Dog has advised me that the invited luminaries at the accountants knees-up where Lyn Provost was awarded a gong for her work in "strengthening public sector performance and accountability" (see earlier post BEYOND BELIEF....) were not aware of her stuff-up over Kaipara and did not know that she is being sued for negligence in the High Court.
Guests at the conference like Bob Geldorf and Justice Kirby from Australia had no input into the awards and were simply there to provide the dressing for the salad to make it all look good and give the impression that it was an international award for our Auditor-General.
Bear in mind that the award was from accountancy firms and that most accountancy firms in NZ rely on delegated work from the OAG to butter their bread. Not a bad idea to lick the boots of a fellow troughers even though its incompetence is on public record.
Perhaps Bob Geldorf shoud have serenaded Lyn with his song "Too late she cried".
ROGAN CASE UPDATE 09.12.2015
An appeal to the High Court has been lodged by Bruce and Heather Rogan in respect of the the decision of Judge de Ridder in the District Court. The Rogans have also applied for a stay of execution of the District Court decision and payment of costs pending the resolution of the case in the High Court.
It is understood that the appeal will be heard by the High Court in May next year when the judicial review filed by the KDC and the Rogans against the KDC and the NRC will also be heard.
STAYED CASES 09.12.2015
The stayed cases in the District Court that have the same defence as the Rogans' case will also continue to be stayed pending the outcome of the appeal.
The status of those cases is unclear. The substance of the Rogan case was changed by the addition of a further plaintiff, the NRC, and by the filing of a subsequent and replacement statement of claim. It was therefore pursued on a different basis to the stayed cases.
COURT OF APPEAL DECISION Following two separate inquiries to the Court of Appeal about when the judgment could be expected, the following information was forthcoming from the Deputy Registrar of the Court:
The Court will normally deliver its Judgment within 3 months. An enquiry has been made to the Judges, who advise they regret the delay in respect of this matter. I am unable to provide you at this time with an expected date of delivery.
I have made an inquiry of the Judges who presided in the hearing. I have been advised that a date for the delivery of the Judgment cannot be provided at this stage.
BEYOND BELIEF, BUT NOT FOR THE SQUEAMISH 30 11.201
The ratepayers' fight to get the rule of law recognised in Kaipara, as you all know, has been long and hard.
We have fought an incompetent council, with a suspect chief executive and mainly dopey councillors, whose lawyers and advisers knew diddlysquat about legal compliance and simple competence.
We have been the victim of a foreign bank and contractors who were bent on rorting the people of the district, and we have hit a brick wall with a government that is intent on imposing its grand design on ratepayers despite its illegality and unfairness.
In short we are up against the trough mentality where those who feed generously at the public trough compel ratepayers and tax payers to keep them supplied with an endless source of sustenance.
On the other side of the coin, they ensure that no trougher has any liability for incompetence, financial imprudence or legal non-compliance.
They have absolutely no liability to anyone, and the fundamental principle that binds the brotherhood is that all troughers must ensure that all fellow troughers are never held accountable for their failures, their incompetence, their negligence, their financial imprudence or their reckless or deliberate flouting of the law.
The OAG is a government organisation that serves as watchdog for the local government sector to ensure compliance with the law. It is also appointed as the auditor for all local authorities and must ensure that they comply with the audit requirements so that the monies of ratepayers are properly protected.
As we all know the OAG failed dismally to perform its obligations in Kaipara. Its audit of the KDC carried out by the OAG’s subsidiary Audit New Zealand reached heights of incompetence that are quite incredible. It ignored the basics check lists and basically rubber stamped the rort that was clearly going on before its eyes.
At the same time the OAG rejected detailed legal submissions from ratepayers establishing persistent illegal rates and development contributions. It kicked for touch and said it was a matter for the courts.
When the full extent of the OAG incompetence was uncovered, Lynn Provost, the Auditor-General, came to Mangawhai and had the audacity to state that she was not going to accept responsibility for the incompetence of her staff. Clearly her knowledge of the law of principal and agency rivals her competence as an auditor.
In any other situation she would have been “gone by lunch time”. But not when you are trougher. The rules are different. The other troughers allowed her to escape. She was allowed to hold an “independent” inquiry into EcoCare even though her Office was principally responsible for the debacle. (The principle of conflict of interest does not apply to troughers.)
Her report found that her Office and the Audit New Zealand were negligent, but the report was delayed to such an extent that the limitation period for suing for negligence had virtually expired.
The previous MP for Northland - whose name cannot be mentioned because the government has put the frighteners on everyone because they want to keep top secret the charges he is going to face in his trial in May next year – put pressure on the commissioners, along with the MRRA and ratepayers, to sue the OAG and audit NZ for negligence.
The commissioners are, of course, fellow troughers and reluctant to take any action against another trougher whose incompetence had unfortunately, despite the efforts of troughers, had some daylight cast on it. They dithered, while the limitation period seeped away, and, under pressure, finally succumbed and issued proceedings against the OAG claiming damages for negligence.
That was in December 2014. Almost a year ago. Virtually nothing has been heard about how the case is progressing. “Legally privileged”, says Honest John.
We all know that the case will never get to court. There will be a confidential settlement with the OAG denying any liability, and ratepayers will not be advised of the outcome even though it was their monies that were lost because of the OAG’s incompetence and even though they funded the legal case.
The damages agreed to will be derisory even though the fundamental responsibility for the Kaipara illegalities and blow out lie at the door of the OAG.
The Auditor-General is an officer of Parliament. She is appointed by Parliament and can be disciplined and dismissed by Parliament. But whilst there was some criticism of her role in the Kaipara fiasco when the Kaipara Validation Bill was churning its way through Parliament, no action was ever taken against the Auditor-General.
The Christchurch City Council validation bill is wending through Parliament at the moment and MPS are incredulous that yet another council with all its highly paid executives and advisers could stuff up a simple thing like setting rates unlawfully for the last ten years.
There are also questions about the competence of the “auditor” and why these blatant illegalities were not picked up. But there is no attack on the OAG, which was the principal auditor for the CCC, or any criticism of the ongoing incompetence of that Office. She will, again, remain in her job and be free to allow local authorities the freedom to be incompetent and flout the law and the requirements of prudent management.
But it is worse that. Troughers reward fellow troughers with prestigious prizes that grab the headlines and establish their superficial credentials, while the reality of their incompetence skulks unseen in the shadows.
Remember how earlier in the year the KDC commissioners made a huge fuss about the SOLGM gong they won for high performance. It was then revealed by this website that things were not as they seemed. To summarise, the KDC under the stewardship of Peter Winder (and two other commissioners) won a gong for its high performance in awards sponsored by Peter Winder's firm, with Peter Winder and Lyn Provost as two of the judges. (Ironically, Lyn Provost was at that time being sued by the commissioners for negligence. Such is the cosy rapport between troughers.)
In respect of Lyn Provost her fellow troughers have excelled themselves. Take a deep breath, and do not read this if you are squeamish. According to the OAG website:
The Controller and Auditor-General, Lyn Provost, last night received an award for her outstanding contribution to public administration in New Zealand from Chartered Accountants Australia and New Zealand (CA ANZ).
As Auditor-General, Lyn has worked to strengthen public sector performance and accountability in New Zealand and overseas, particularly in the Pacific. She has advocated for financial and public management to ensure that the public sector can deliver quality services to citizens now and in the future.
Lyn received her award from global activist Sir Bob Geldof.
Lyn is on the right
For earlier posts click here.
HONEST JOHN 26.11.2015
Honest John is very restrained in his latest Mangawhai Focus column in respect of Judge de Ridder's District Court judgment against the Rogans. Perhaps he has been advised by the KDC's solicitors that the judgment is so sweeping that it makes superfluous all legislation that imposes obligations on local authorities. It also obviates any need to pass validating legislation to correct rating errors as the District Court is emphatic that ratepayers have no right to object to the invalidity of rates.
It is ironic that the Christchurch rates validation bill is going through Parliament at the moment and it is clear that Parliament is certain that the rating errors of that council - many of which are the same as the KDC's erors - render the rates invalid, and that a validation bill is absolutely necessary otherwise ratepayers can refuse to pay the rates.
So which is right, the District Court or Parliament?
One would have thought that as Parliament passes the legislation then it would have a better grasp on the effect of non-compliance with the law and the need for validating legislation.
That fundamental dichotomy is why it is so important to appeal the District Court judgment to the High Court.
More of that later.
Honest John's final comment is that in respect of the 20 or so stayed cases: "They are also now liable for all rates now due".
There is nothing in the judgment that says this. In fact the status of those stayed cases is completely up in the air because the Rogan case to which they were supposed to be linked proceeded under new plaintiffs (the KDC and the NRC) with a different statement of claim. There now appears to be no link between the cases.
The Rogans' solicitor is trying to find out the status of the stayed cases from the Court and details will be published as soon as they come to hand.
MANGAWHAI FOCUS 26.11.2015
As mentioned in earlier posts, the Mangawhai Focus has completely changed its focus (so to speak) in respect of the KDC illegalities issue. Rather than being the lap-dog mouthpiece for Honest John and his fantasies, it is now allowing all and sundry from both sides of the fence to voice their concerns and grind their axes.
Sadly, it may have gone overboard in the other direction. No doubt the over-long, laborious letter to the editor in the current edition from Dr Ian Greenwood owes its inclusion to the allegations of defamation made by Dr Greenwood. He certainly deserved a right of reply, but that does not mean a reply of Tolkien proportions.
The motivation behind including the letter from Dave Barlow is not clear. The letter is gratuitously abusive in respect of MRRA chair Bruce Rogan and seems nothing more than a generalised personal attack on him without reference to any specific issue.
DR IAN GREENWOOD 26.11.2015
The letter in the latest edition of the Mangawhai Focus from Dr Greenwood headed More character attacks purportedly defending his integrity and putting the facts straight is far too long and overstated
In my previous article on this matter I made the point that Dr Greenwood would be best advised not to raise his head above the parapet. While he is clearly convinced of his ability and his personal integrity there is a large group of ratepayers in Mangawhai who do not see it that way, and, given the opportunity that he publicly presented, were more than willing to tell him a few home truths.
I suggest that the letters from ratepayers to the editor published by the Focus attacking Dr Greenwood’s comments were the tip of a very large iceberg. Many ratepayers were incensed by his comments which were simplistic, showed a lack of understanding of what the MRRA was fighting for, and indirectly supported the view of the commissioners that they are above the law. (See the post below.)
Dr Greenwood might have benefited from deeper reflection on what he actually said in his original letter and perhaps he should have considered his response to the critical letters with more care.
Whilst he may have exemplary credentials (recited at some length in his letter), many believe that by hitching his dinghy to Honest John’s flagship, and slavishly accepting the limited terms of reference, he made a fundamental professional misjudgement.
He appeared to many to have abandoned his professional independence and looked more like a lackey entrusted with the mission of making the EcoCare “lemon” look viable. His endorsement of the unpriced options for the future whilst refusing to consider in any way the unresolved problems of the past, and the resentment felt by a most ratepayers about EcoCare rort, sent out the message that he was selected for his role because he uncritically endorsed the views of the commissioners.
More than anything, his adamant refusal to consider costs or any options not favoured by his bosses turned many ratepayers against him.
It is worth noting that in his letter, whilst criticising those who he suggested defamed him and personalised the attack on him, and whilst providing a worthy quote to support his stance, he cannot resist vacating the moral high ground and taking a personal swipe at Bruce Rogan.
CAN THE KDC BE PUNISHED FOR ITS ILLEGAL ACTIVITIES? 26.11.2015
In his reply letter to the Focus Dr Greenwood takes issue with the claim for damages against the KDC for breaching the rights of ratepayers and in particular the members of the MRRA.
Interestingly, in arguing that all ratepayers end up paying any damages awarded to the MRRA, Dr Greenwood uses the same argument that is adopted by the commissioners in their legal battles against the Rogans and the MRRA.
They argue that if the court accepts that they breached the law, and there is little doubt that they did, and they are obliged to refund unlawful rates, then the result would be “Armageddon” of “nuclear” for the KDC’s finances.
It means that ratepayers would end up carrying a massive burden because effectively ratepayers bear responsibility for all the stuff-ups of a council.
For that reason, the commissioners plead that the court should use its discretion and ignore the transgressions and allow the KDC to operate outside the law. Dr Greenwood argues the same in respect of damages for breaching the rights of ratepayers
But why are local authorities a special case? Such a plea would never be available to an individual, a business or any other entity.
Fines are common in everyday life. They are a punishment for breaking the law. I am sure that Dr Greenwood has paid the odd parking ticket. We all pay for speeding tickets and companies regularly get fined for breaking health and safety rules.
The law lays down that damages may be awarded against those who breach the rights of citizens under the NZ Bill of Rights Act. The High Court found that the KDC breached the rights of the members of the MRRA (and indirectly all ratepayers) but held that in the circumstances the breach was “justifiable”. That part of the decision was appealed to the Court of Appeal and we are still waiting for a ruling.
What Dr Greenwood is saying, along with the commissioners, is that the KDC (and all local authorities) can never be held accountable in any way that affects their finances because it is the innocent ratepayer who ends up footing the bill.
The way things are structured, that is absolutely right. But that is only because those who run local government in New Zealand have decided that those who act imprudently and illegally in carrying out their responsibilities are not held accountable in any way.
Dr Greenwood and his forbears have been in Mangawhai for years and he appears in his letter to acknowledge the incompetence of the KDC. That means the chief executive at the time, his staff and the councillors.
I am sure he also accepts that the auditors were grossly negligent along with the OAG.
As a professional himself, he no doubt wonders how the KDC’s lawyers and consultants got it so wrong.
And he may not know that the Minister of Local Government was aware for several years that the KDC was persistently flouting the law but refused to take any action to rein it in.
But along with the commissioners that he has aligned himself with, Dr Greenwood believes that the responsibility for any financial fall-out should rest with the innocent ratepayers, and that those who are clearly identified as the truly guilty parties, who were major players, or allowed the debacle to happen, should escape any liability.
As a corollary to this argument, because of the financial burden imposed on ratepayers in the scheme of things that he supports, the KDC should be allowed to escape any liability for past illegalities, and should be free to flout the law in future.
The MRRA is fighting against those assumptions and the premise that ratepayers bear responsibility for all financial losses. It believes that those precepts have no basis in law. Its view is that ratepayers should not be burdened with illegal rates that did not comply with the LGRA or were set for a purpose that has been declared illegal by the High Court, and should not be responsible for an illegal debt that was entered into secretly and in breach of the law.
The MRRA believes that those who were responsible for the losses should pay, whether it is the debt or awards of damages. If that does not happen then those who run, or advise, or audit local authorities are free to ignore the law and their responsibilities, and effectively allow the local authority to operate outside the law.
If we allow those in local authorities to escape liability then the result is utter chaos. I invite Dr Greenwood and readers to read the comment of MPsdebating the Christchurch Validation Bill to see the effect of allowing councils the latitude to ignore its obligations.
DISTRICT COURT DECISION 25.11.2015
Apologies to readers for the lack of comment on the de Ridder judgment in the KDC v Rogan case.
The MRRA litigation team have been busy with its lawyer analysing the judgment and deciding what action to take. Detailed comment will follow once decisions have been made. In the interim, some general comments.
Those who have read the decision will be amazed that the District Court has held that there is no right to object to non-complying rate demands or invalid rates in the District Court, and the only right to object in the High Court is under s 60 LGRA, and only then on very narrow grounds.
The end result is that ratepayers are bound by their obligations under the LGRA but local authorities are free to ignore their obligations.
All the checks and balances that Parliament meticulously inserted in the legislation to protect ratepayers and to ensure compliance with the purposes of the LGRA have been decreed by the District Court to be irrelevant.
The Court also acknowledged that the Validation Act completely omitted to validate the unlawful rates for the 2012/2013 year because of a blatant omission in the Act.
It seems quite bizarre that the whole purpose of the Validation Act was to validate the multiple failures of the KDC to comply with the requirements of the LGRA. But the Validation Act itself failed to do what it was supposed to do.
Perhaps it needs another validation act to validate the Validation Act? Or a simple amending act would do.
But that is not necessary. In a surprisingly broad interpretation of his judicial function, Judge de Ridder decided that he was empowered to effectively amend the legislation by filling in the gaps left by Parliament.
In his judgment Judge de Ridder is of the view that ratepayers are obliged to pay rates irrespective of their lawfulness. That is a message that he has sent out to New Zealand.
All those in local government will be cock a hoop that the free rein approach to legal obligations that they have adopted for years has now been confirmed by the courts.
KDC staff responding to the District Court judgment
For years the KDC stated quite confrontationally that anything that it did was legal (even though blatantly illegal) until a court declared it to be illegal. The District Court have now confirmed that ratepayers do not have the right in law to challenge the actions of a council. So it is game, set and match to local authorities.
At least for the moment.
Judge de Ridder has thrown down the gauntlet to ratepayers throughout the whole country. If we accept his decision then we are committing ourselves to arbitrary power beyond the rule of law.
It seems that that ratepayers of New Zealand have no option. They have to get behind the MRRA and put the question loudly and clearly to the higher courts:
Are local authorities above the law?
CHAMPAGNE CORKS POP AT KDC 13.11.2015
The Champagne corks would have been popping at the KDC on receipt of Judge de Ridder's decision in the KDC v Rogan case.
The Judge found for the KDC on just about every point that was argued which gave a clean sweep to the commissioners.
However, one cannot help thinking that that elation will be tinged with some major concerns. The KDC legal advisers are intelligent lawyers and they will have grasped very quickly that the judgment of Judge de Ridder is not one of the finest pieces of jurisprudence to emerge from the courts of justice.
Its broad sweeping conclusions that effectively state that local authorities are free to ignore the law at will without any consequences, and are not bound by the prescriptive obligations in the rating process, sadly puts the judicial stamp on the widely held local government view that local authorities are above the law.
It is ironic the in a post a few days ago I quoted Justice Harrison in a Court of Appeal decision where he said that obligations placed by Parliament on a local authority do not exist in a vacuum. They were inserted in the legislation by Parliament because they have to be complied with. Otherwise, why would they have been inserted?
Clearly, Judge de Ridder takes a different view.
The MRRA executive has advised that the decision will be appealed to the High Court and that a stay of execution will be applied for. That means that no rates or costs will be payable until the appeal is heard.
At this stage it is anticipated that the appeal will be heard in May next year in the three day fixture set down for the judicial review application by the Rogans and the MRRA against the KDC. The issues of the two cases overlap.
In respect of all the other cases held in abeyance, there has been no ruling. The District Court got itself into a real mess about these cases prior to the hearing and it now appears that they are out in limbo and would have to be individually actioned by the KDC. That seems unlikely given that the Rogan case is subject to appeal.
The KDC v Rogan ruling can be seen here.
COUNCIL OBLIGATIONS DO NOT EXIST IN A VACUUM 11.11.2015
An interesting decision has emerged from the Court of Appeal relating to the election to the Maori Statutory Board of Auckland City.
(See https://www.courtsofnz.govt.nz/from/decisions/judgments and go to Court of Appeal judgments: Tame Te Rangi & ors v Jackson
The selection of two mataawaka representatives (who represent Maori without tribal affiliation) was challenged by Willie Jackson on the basis that the selection body did not comply with the legislation in appointing the representatives.
Harrison J delivered the judgment of the Court and held that the selection body failed to comply with its statutory obligations because it did not follow the strict requirements of the legislation.
 The process prescribed by Parliament does not exist in a vacuum or for its own ends. The words of cl 6(2)(c) are plain and unequivocal in stipulating that the process adopted must require “the body to take into account the views of mataawaka when choosing the representatives”. The process exists for the substantive purpose of ensuring that the selection body actually takes account of mataawaka views: otherwise, it may rhetorically be asked, what is the rationale for mandating a process requiring mataawaka views to be taken into account if, ultimately, they are not?
Harrison J also heard the MRRA appeal and his ruling gives some hope that he and his fellow judges of the High Court and the District Court may view the KDC cases in the same light.
After all, to paraphrase Harrison J's question, what is the point of Parliament deciding that local authorities must take certain steps to protect ratepayers' interests, and mandating those obligations in the relevant legislation, if local authorities are free to ignore them at will?
As a footnote, this case was heard on 15 September 2015 and the decision was released on 19 October 2015, just over a month later. It is now over three months since the KDC appeal was heard and still no sign of a decision.
The District Court case against the Rogans was heard in June, and, again, no sign of any decision.
FOCUS CHANGES TACK 11.11.2015
In several posts I have remarked how the Mangawhai Focus has recently abandoned it obsequious fawning to the commissioners, and has finally presented its readers with some balance when reporting on the conflict between the government imposed commissioners and ratepayers of the district.
In a recent post (Scroll down to SOME HEADS BEST LEFT IN THE SAND) I responded to a letter to the Focus from Dr Greenwood, one of the commissioners' appointees on the new EcoCare Ponzi Scheme advisory panel, who laid into the MRRA without any understanding of the facts of the situation.
As I noted, many ratepayers were incensed at his comments, and this week's edition of the Focus includes some of the responses from those ratepayers. They can be viewed here.
It is very easy to believe that Honest John had fulfilled his mission to subjugate the ratepayers in Kaipara, and force them to pay the hapless KDC's illegal debt. After all he has the unlimited coffers of ratepayers' monies to spend, and he has the resources of this henchmen in government and his cohorts, the banks. He has also had, until recently, total control of the press, which is a fundamental requirement for all dictatorships.
Many people may have been forced to submit to his exercise of power, but they did so unwillingly. There is a huge groundswell of ratepayers who accept that the debt is illegal, that ratepayers should not pay it, that the commissioners have been instrumental in letting the guilty parties off the hook, and that they are in power solely ot protect the best interests of the banks.
While we are occupied by force, with democracy and good governance denied to us, we have little choice; but our time will come. John Key cannot deprive Kaipara of democracy beyond October 2016, and, when he does deign to allow us our basic democratic rights, the books will finally be opened and the truth will at last see the light of day.
Hopefully, before then, if we are blessed with a favourable wind, the courts of justice may respond to our pleas to uphold the rule of law, and declare that local authorities are subject to the rule of law like everyone else, and that they cannot be excused from legal compliance because of administrative inconvenience or because it would not sit well with the government's scheme of things.
SCARE TACTICS AND SECRECY IN RODNEY 06.11.2015
We have seen it all before. When there is an important issue to be decided, local councils protect their vested interests with lashings of smoke and mirrors, and openness and transparency are bundled up and consigned to the cupboard.
With the Local Government Commission suitably chastised by the recent High Court decision, Auckland City is now fighting a rearguard action to try and stop North Rodney from seceding from the Super City.
According to Mahurangi Matters, a report from the Auckland City has been presented to the Rodney Local Board and threatens higher rates and indiscriminate development as consequences of a NAG proposal to set-up a standalone Unitary Council in north Rodney.
Whilst undoubtedly there are negative sides to any secession, Auckland City, which is completely dominated by big business, is scarcely going to let one of its golden geese flee the coop without a bitter fight.
Sadly, it appears that the Rodney Local Board is considering the report behind closed doors.
THE KAIPARA DISEASE 06.11.2015
The Kaipara disease is alive and well, even in Afghanistan.
Big business throughout the world concentrates on finding essential services that it can take over and extract every bit of profit that it can, whilst being protected by governments that slavishly turn a blind eye to such profiteering.
In New Zealand successive governments refused to coral a reckless Kaipara council that allowed commercial interests to rort the people of the district with the result being a $58 million white elephant of a sewerage system that cost in excess of $58 million (no one knows the true figure) and only services 1700 properties.
The NZ Herald quotes a Washington Post report that in Afghanistan the US government built a CNG filling station that would normally cost about US$360,000, but in this instance cost US$43 million.
The US Special Inspector General - a belated government-appointed watchdog - reported:
• The project was "gratuitous and extreme" - and possibly criminal.
• Had "several troubling aspects", including US$30 million in overhead costs, and the lack of a feasibility study before the project began.
• The Pentagon essentially shut down when pressed about the programme, saying: "One of the most troubling aspects of this project is that the Department of Defence claims that it is unable to provide an explanation for the high cost of the project or to answer any other questions concerning its planning, implementation or outcome."
• The department responsible, the Task Force for Stability and Business Operations (TFSBO), has closed and so the Pentagon said it couldn't comment on its activities.
All of those comments resonate with Kaipara ratepayers.
The policy behind the project was clear. The gas station was intended to help Afghanistan curb its dependence on foreign petroleum products and take advantage of domestic energy.
However, as with Kaipara's EcoCare, the experts fudged all the figures and financial models. Investigators found that Afghanistan does not have the natural gas transmission infrastructure to support a "viable market" for cars that used compressed natural gas.
And, as in Kaipara, no one ever considered whether the local residents could afford such expenditure. The cost of converting gasoline-powered cars to run on natural gas "may be prohibitive for the average Afghan". The cost of converting a car is about US$700 while the average annual income in Afghanistan is US$690.
The investigators summary stated:
"In sum, it is not clear why [TFBSO] believed the CNG filling station should be undertaken."
The only difference between the Afghanistan rort and the Kaipara rort is that the US government was happy to foot the bill for its folly in the desert. Whilst in New Zealand the National government has absolved itself from its clear liability for the Kaipara debacle and is moving heaven and earth to ensure that the innocent ratepayers are dumped with the bill for government incompetence.
SOME HEADS BEST LEFT IN THE SAND 27.10 2015
Those who have narrow views, shun a broad view of their subject, and keep their heads firmly planted in the sand, would be well-advised to keep their heads well and truly buried. If they extract their heads and raise them above the parapet then they are likely to get them shot off.
The latest edition of the Mangawhai Focus has a letter from Dr Ian Greenwood who was one of the team hand-picked by Honest John to front the second version of the EcoCare Ponzi scheme.
Despite his academic qualifications Dr Greenwood impressed few with his approach to the task and allowed himself to be hog-tied by terms of reference which allowed no objectivity and consideration of the past, no broad consideration of alternative methods of waste disposal, and which prevented the team from considering the cost of the options that they were directed towards.
In his Focus letter Dr Greenwood abandons his "I know nothing of the past" approach and suddenly becomes an expert on the history of the MRRA and the KDC's less than friendly engagement.
He criticises a letter in the previous edition of the Focus from Bruce Rogan, chair of the MRRA, explaining some aspects of the legal process against the KDC, including the claim for damages.
Dr Greenwood immediately adopts the view that any penalty or damages, if imposed by the Court of Appeal, would be paid by all the ratepayers of the district, which means that the MRRA is getting a windfall at the expense of other ratepayers.
Like all of those who adhere slavishly to the view of the government and its appointed commissioners, Dr Greenwood completely dismisses the incompetence, the negligence and the sheer illegality of those responsible for the debacle because they are all gone or soon to go.
Those councillors, CEO and other staff involved in the original MCWWS decisions are no longer with KDC, and the Commissioners only have a matter of months left on their contracts, so the only people remaining who will be taught a lesson through any form of deterrent/punitive payment are the remaining ratepayers of the district who are not MRRA members.
It is quite amazing how people with the obvious intelligence of Dr Greenwood can draw a line on the past and act as if it never happened. One wonders if he would be so ready to act in that way if he himself had been the direct victim of a shoddy builder who had ripped him off or a lawyer who had misappropriated funds held on his behalf.
He is very selective on what he choses to opine.
He overlooks the fact that his mates, the commissioners, are dumping the whole of the EcoCare debt (that services a plant in Mangawhai with a mere1700 connections) on every ratepayer in Kaipara. So the residents of Dargaville, Ruawai etc are footing the bill for the Mangawhai waste..
Is he not concerned that that debt was taken out on the strict basis that only those connected were to repay the debt, and now the commissioners are placing that burden on every man woman and child in the district?
The Mangawhai endowment fund should have been invested by the council. Instead it was used to fund heaven knows what and has completely disappeared. The annual interest that accrues does not come from interest earned (because zero accrues zero interest) but the" deemed" interest is funded by every ratepayer in the district through rates.
If the fund were to be reinstated - it is not- then it would have to come from the rates paid by all the ratepayers in the district.
The list of illegalities and injustices is endless but Dr Greenwood is only focused on attacking the MRRA and exonerating his political allies. He is.not interested in the past and is eager to ensure that all those who are truly guilty are exonerated.
Perhaps he should examine more closely the roles paid by the witless councillors who allowed themselves to be duped into secretly approving the doubling of the size of the EcoCare plant and the EcoCare loan, and naively believed that it could be funded by a handful of ratepayers connected to the scheme,
He should look at the part played by the chief executive, the contractors, the project managers, the lawyers who all knew that what they were doing was unlawful, financially reckless, and in breach of the KDC's own treasury policies.
He should examine the role played by ABN Amro and the "arrangement" that it put together to breach the laws of New Zealand and suck monies out of the gullible people of Kaipara.
And, while he's at it, he should look at the role of the government that put utterly incompetent watchdogs in place; that not only allowed but endorsed the illegal Kaipara rort; that refused to take any action when ratepayers clamoured for some action against persistent illegalities; that whitewashed all the illegalities once they were proved, whilst allowing all the offenders to slip away into the shadows; and, in a final act of malevolence, dumped the whole debt and vindictive penalties on whistle-blowing ratepayers, to teach them a lesson.
Many ratepayers are incensed by Dr Greenwood's letter and he might be advised to plant his head where it functions better, back in the sand.
A MUST-READ FROM THE PROF 27.10.2015
Prof Worzel has excelled himself in his latest post in the Mangawhai Focus.
He sees Honest John as a great fiction writer based on his regular Focus column because he never mentions the fact that Kaipara is being rorted by the banks.
This is what he has to say:
While everyone complains about foreigners buying farms and excessive immigration, the guys really robbing the district (and country) to the capital equivalent of one large farm per annum don’t even live here. They sit in offices abroad, simply manufacturing debt for suckers like the KDC. It is the greatest fraud ever perpetrated on this district.
The Prof is right. Honest John waxes smoothly and eloquently about the improvement in the KDC systems, about the need to provide services, and fix the roads, but steers well clear of the stark, clear reality that each resident and ratepayer in Kaipara has been forced to guarantee a massive illegal, secret loan that was frittered away on enriching the local government trough feeders.
Personal frugality means nothing. Working hard to get rid of one's own mortgage s irrelevant because the KDC has an unwritten mortgage over every property in Kaipara, and, when Kaipara is allowed to join the Local Government Funding Agency, that implicit mortgage will oblige each Kaipara property owner to guarantee the loans of Auckland, Wellington and all the other councils in NZ.
The Prof signs off with this nice summary:
Fortunately I found out early that bankers are but pawnbrokers of a more anonymous less scrupulous type, and insurance companies are merely bookmakers betting on statistical certainties but who are loath to pay out when they occasionally lose. Raised in more prudent times when the ethic was ‘If you cant afford it, don't buy it,’ I have long been free of the Debt Dragon, only to find that the KDC have illegally and in secret applied this death grip to all it's ratepayers. I invite them to inspect the $52 million loan agreement documents with the now defunct ABN Amro Bank. They will not find my signature on them.
That last sentence is the nub of the MRRA's legal argument.
If a council wants to act illegally and incur a secret debt that is outside its capacity, in breach of the law, outside its limits of borrowing, and totally contrary to the legal requirement to act prudently, and if the law decrees that, despite the illegalities, the council is legally bound by its bizarre and reckless behaviour, then so be it. But, as the Prof says. there are no ratepayers signatures on the loan agreements. The council must deal with the debt on its own.
It is a fundamental principle of law that all agreements, including loan agreements, are only binding and enforceable between the signatories. They cannot bind third parties unless they are a party to the agreement.
The only way that ratepayers can be forced to pay a loan of the council is if the council has the legal power to set a rate to meet the obligations under the loan.
Normally that is no problem, but in this instance the High Court has declared the loan agreements to be unlawful, and the purpose of the loan to be unlawful, And the law is quite clear, a council does not have the legal power to set a rate for an unlawful purpose.
So, is the KDC to face the debt on its own, or are ratepayers going to be dumped with liability by some obscure interpretation of the law?
That is the dilemma facing the Court of Appeal.
ANOTHER CONSPIRACY THEORY 24.10.2015
Another conspiracy theory has been doing the rounds of the legal profession. The MRRA's legal counsel, Matthew Palmer QC, was suddenly elevated to the bench as a High Court Judge with extreme alacrity, having been appointed a QC in only June last year. (Scroll down for previous article.)
The rumour is that his meteoric rise has some political overtones. In Friday's (23 October) NZ Herald an article in The Insider lends weight to the speculation.
The appointment of Wellington Queen's Counsel Matthew Palmer as a High Court Judge is no real surprise; many observers half suspected that Palmer would have become Solicitor-General. Cynical members of the bar say an appointment had to be made sooner rather than later, as Palmer had become a real thorn in the Government's side - most recently by leading the Official Information Act request case against Tim Grosser and the Ministry of Foreign Affairs and Trade.
The article does not mention the Ports of Auckland case, the Basin Reserve case and others where Mathew Palmer won significant victories that have run contrary to John Key's vision of New Zealand as he believes it should be.
And, of course the Herald does not mention the MRRA judicial review which Matthew Palmer argued in August before the Court of Appeal, and where he laid down a challenge to the New Zealand justice system to either adhere to the rule of law or, effectively, allow local authorities to thumb their noses at legal obligations.
This is the biggie of them all because it has the potential effect of turning over the local government apple-cart throughout New Zealand.
The government is fully aware of the danger of the case and the nightmare of Matthew Palmer having the opportunity to present his arguments to the Supreme Court has been avoided by Palmer's elevation to the bench.
However, the battle to bring the rule of law back to Kaipara will continue unabated. After all, although we have lost our champion, it is the legal principles that we stand for that will win the day when justice finally prevails.
The other point is that "thorns in the side" at the bar do not necessarily change their approach when elevated to the bench.
MRRA'S COUNSEL ELEVATED TO THE BENCH 17.10.2015
The Attorney General Christopher Finlayson announced yesterday that Matthew Palmer QC has been appointed a Judge of the High Court.
The announcement can be seen here.
Justice Palmer will sit in Auckland.
HIGH COURT DECLARES GROSER ACTED UNLAWFULLY 14.10.2015
The High Court has ruled that Trade Minister Tim Groser acted unlawfully in declining the Official Information request of law professor Jane Kelsey and others in respect of the Trans-Pacific Partnership. The Herald report can be seen here, and the comments of Jane Kelsey here.
Another Minister caught breaking the law
Jane Kelsey comments:
The judge's statement that 'the Act plays a significant role in New Zealand's constitutional and democratic arrangements' and its meaning and purpose must be fully honoured by those to whom it applies, is a clear rebuke to the Minister. It also sends a clear message to the government more generally that the growing unaccountability of Executive power is not acceptable in a democracy.
Those of us in Kaipara will be fully aware of the complete abuse of Executive power in relation to all the illegalities perpetrated by the Kaipara District Council and the protection afforded to the previous council and the current commissioners by an Executive that is bent on protecting the financial interests of the banks and big business whilst bending the rule of law to suit its purposes.
However, Jane Kelsey states that "the unaccountability of Executive power is not acceptable in a democracy". In a democracy? We have to remember that here in Kaipara we don't even have a democracy. That was taken away from us by John Key, and was replaced, effectively, by a dictatorship that forces the ratepayers to pay the illegal rates and illegal debts of a disreputable council.
The Sunday Herald article by Rodney Hide, referred to by Jane Kelsey, can be seen in all its glory here. The new Man of the People accentuates the weakness of his arguments by launching into an over-the-top attack on Jane Kelsey and her politics. He lifts himself to lofty intellectual heights by adding rather fatuously:
Well, the deal has now been agreed. And miracle of miracles, the sun still shines.
What an amazing insightful observation. Nature is not affected by the machinations of men.
Coincidentally, the sun also continues to shine in every country ruled by tyrants. It also continues to shine in Kaipara and in Magical Mangawhai in spite of the financial destruction visited on them as a result of Rodney Hide's total failure as Minister of Local Government to act on the warnings of ratepayers and stem the illegalities and incompetence of the Kaipara Council.
The shining of the sun is consistent and something we can rely on, even though we are bowed down with illegal debt. Democracy, the rule of law, justice and fairness are all fragile creatures that can diisappear in the twinkling of an eye, .
WHITHER KAIPARA GOES, AUCKLAND FOLLOWS 12.10.2015
Those who wield the power in local government seem absolutely determined to spend up large and fill the pockets of their mates in big business whilst ratepayers are being burdened with debts that are so extreme that they are becoming a farce.
One might have thought that the Kaipara fiasco (see figures in earlier posts) might have sounded warning-bells throughout the sector, but the money to be made out of the local government trough is too great for the greedies to resist.
With the watchdogs sleeping the sleep of the dead, with the blessing of their Paliamentary masters, ratepayers throughout New Zealand are being plundered and indebted to an extent that is quite unbelievable.
In what we believe to be corruption-free New Zealand, we look askance at countries with imbedded corruption and the "tithing" or "taxing" of individuals and businesses by financial terrorists like the Mafia. Little do we realise that what is happening in New Zealand is far worse because it affects every man woman and child, it is done with blessing of the government, and it is enforced by the law of the land.
Take a look at the Ratepayers' Briefing from the Auckland Ratepayers' Alliance and absorb some of the figures. The amount of indebtedness is terrifying and that is nothing to what is in the pipeline.
Those living out of Auckland may be thankful that they are not faced with such debt. That is a problem for Jafas to face and it serves them right for electing a guy like Brown.
But, hold on to your horses. Most local authorities in New Zealand are now members of the Local Government Funding Agency (LGFA). What this means is that the debt of every member council is cross-guaranteed by all the other member councils. So all member councils guarantee Auckland's debt and the debts of every other member council.
But it is more sinister than that. The government takes the view, as we have seen in its intervention in our court cases, that ratepayers are responsible for all the debts of their council regardless of compliance with the law or whether the rates were set for an illegal purpose, or the council acted recklessly. That means that ratepayers are not only obliged to pay their own council debts, but also, because of the cross guarantee, they are also obliged to pay all the debts of all the councils in the LGFA.
This is serious stuff. If the rates are not paid then court proceedings can be issued and ratepayers may lose their homes.
New Zealanders do not realise that, by the mere fact of owning a property, they are effectively granting a mortgage over that property which entitles the NZFA to recover from them personally a share of the debt of every council in New Zealand.
This has all been put in place in the last couple of years. The big blow-out is inevitable. It is coming, it is just a question of when. And when it does come the banks will be adding penalty interest to the debt as it all spirals out of control. The poor old ratepayers will be left holding the baby while all those responsible for the debt will be free of any liability.
The only good news is for Kaipara residents is that the the KDC is so impoverished and carrying so much debt that it is not allowed into the LGFA Club. That means that we do not have to pay Auckland's bills as well as our own. Small mercies.
The other good thing is that the MRRA/ Rogan court cases may turn the whole apple-cart over, and bring some responsibility back into local government and shaft home the liability where it belongs, firmly on the shoulders of the perpetrators.
Kaipara is a warning to the whole of New Zealand, but no one is heeding the warning.
See Auckland Ratpyers Alliance website here.
FUDGING THE DEBT 10.10.2015
Honest John is at it again in his Mangawhai Focus column, Your questions answered.
The secret of being a successful snake-oil salesman is that you never let the punters ask the questions. You always ask the questions that relate to your spin and give them the answers that you want them to hear.
Honest John has been doing the rounds telling local business people in Mangawhai how good he is and how the debt is reducing, and he is churning out the same old, same old in his Focus column.
The problem with the "debt" is that it starts with a lie. Honest John will not admit to the real debt of his council. He only counts external debt, that is debt owed to banks. He does not count debt owed to ratepayers.
No one knows the amount of that debt but we know that it includes the Mangawhai Endowment fund investments, the reserve funds, depreciation funds and quite sizeable amounts that were paid by ratepayer for specific purposes (flooding etc) and were all held in trust by the KDC.
They have all gone. Spent by a profligate council on heaven knows what and they only survived as paper entries, as debts owing to ratepayers.
According to Honest John they are not real debts, and he is right in that local authorities, under accountancy procedures that would land company directors in prison, are allowed to use ratepayers' monies held in trust for other purposes, provided they have the wherewithal to pay them back.
The KDC was not so subtle. It simply stole the money. It used it to line the pockets of the rorters and rip-off merchants, and has never had the wherewithal to pay it back, or the intention of pying it back..
But no need. Honest John and his crew decided to wipe the slate clean and get rid of all the paper entries. All the stolen trust monies have been, or are going to be, terminated. The debts are going to be expunged by simple book entries.
Not a bad way of reducing debt. You select the people you owe money to who are completely disenfranchised and beaten into submission and simply tell them that you are not going to repay their debt. Hey Presto! The snake oil has vanished $20 million of liabilities.
INCREASING THE RATES
In his Focus blurb Honest John provides a chart that shows the so-called reducing debt and the rates charged. The interesting point is that for the three years from 2012 to 2015 the chart shows that rates increased from $18.7 million to $27.8 million which is close on a 50% increase. It works out at a yearly increase of over 16 per cent. No Hey Presto about that. No magical new systems, no great technological efficiencies, as suggested. Just slugging the ratepayers even harder.
WHAT ABOUT THE FUTURE DEVELOPMENT DEBT?
How does the $26.2 million of debt allocated to future development come into this? The commissioners cannot even pay the interest on it, so most of the interest is being capitalised. Where is that shown in the accounts?
And how is that debt to be repaid? All the financial assumptions say that it is to be repaid by development contributions on future developments. But they will not be there and, even if they are, they will be used to fund plant extensions, new methods of disposal and reticulation, not to repay existing debt
The auditor put a warning on the accounts that if this assumption does not materialise then the ratepayers would have to pay through increased rates. So, get ready to be slugged again.
Honest john says that the commissioners capped the debt on their appointment. How true is that?
Let's go back to when the EcoCare loan was taken out.
According to the 2006/2016 LTP the pre EcoCare debt was $9.45 million which, given a population of 18,250 at the time, gave a debt per resident of $518. [Isn't that amazing. If only we could turn back time.]
In taking on the EcoCare debt the KDC was governed by its Treasury Policies on borrowing set out in the LTP. The Council's core debt (payable by all ratepayers) was not allowed to exceed more than half the operating income. So the income to debt ratio was 2:1.
The projected operating income in 2005/2006 amounted to $29.235 million of which $11.329 million was rates.
The maximum amount of debt that the KDC could take on was therefore $14.6 million. It already had debt of $9.45 million so that it could only borrow a further sum of just over $5 million.
So, how did it get round that problem? By a device called segmented debt whereby it could borrow outside the normal ratio if a debt was for a specific project and the debt was full self-performing. That meant that all the costs of the project, interest, capital repayments, maintenance, servicing etc were covered by the targeted rates paid by the users of the system.
The problem was that all the figures on which the calculations were based (prepared by a top accountancy firm) were not only top secret but turned out to be fantasy land stuff. The figures were unachievable but, in any case, the conditions and criteria of segmented debts, set out in detail in the LTP, and which were supposed to be rigidly applied, were completely ignored by the KDC. [Where was the auditor?]
The segmented EcoCare debt never met the conditions and criteria of a segmented debt and therefore defaulted into the core debt category and became subject to the income to debt ratio.
The final acknowledged debt ended up at around $80 million, which was about five and a half times more than the permitted debt.
When the commissioners arrived on the scene, like spiders full of spin, they did what is common practice in local government and simply moved the goalposts. They introduced a new income to debt ratio that fitted with the reality and launched a charm campaign to tell ratepayers that the crippling debt was quite normal and "manageable". They are still at it.
"WE ARE NO LONGER A COT CASE"
Honest John claims that the cot case finances are now behind us and that the "debt carried by the KDC is not out of line when compared to many other Councils".
Larry Mitchells League Table showing council debt always showed Kaipara sitting at the bottom of the table.
In an recent article I compared Hastings' "high" debt with that of Whangarei and Kaipara. Here is a chart that sets it our clearly.
Council Debt Population Debt per capita
Hastings $55 million 70,000 $785
Whangarei $156 million 84,000 $1,900
Kaipara $76 million 19,000 $4,000
$96 million (true) 19,000 $5,052.
The startling thing is that in 2005/2006 the Kaipara debt was $9.45 million and the Mangawhai Endowment fund and all the reserve funds etc were all intact.
As a result of the EcoCare debacle the debt blew out by a further $67 million dollars in ten years and all the funds held in trust disappeared.
All for a lemon of a sewerage system that cannot do what it was supposed to do.
That is the burden that has been placed on every man woman and child in the whole of Kaipara to provide a sewerage system for 1700 properties in Mangawhai.
FOCUS GETS FOCUS 10.10.2015
The Mangawhai Focus is still allowing Honest John to use the newspaper as a propaganda sheet but there are signs that it has finally grasped that all is not well in the government-imposed Kaipara dictatorship.
The latest editon contains over a page and half of letters to the editor opposing the commissioners. Christian Simon has his say about the alternative sewerage systems and advises of an information meeting on eco-sanitation in early January 2016.
Both Alan Preston and Anthony Roberts voice their concerns over the commissioners rule, and Bruce Rogan puts into context the MRRA's claim for damages in the High Court.
A NEW APPROACH TO FIRE FIGHTING 09.10.2015
The Mangawhai Focus leads in the latest issue with Burning issues threaten brigade which recounts the problems faced by the dysfunctional Mangawhai Fire Brigade. It appears that because of internal strife in the local brigade there is not enough fire-fighters to man the fire trucks for a large part of the week.
Again, we hear of the refusal of Wellington to front up to the problem and a so-called "independent" inquiry that is nothing of the sort.
The NZ Fire Service has a lot to answer for. It pressed for the inclusion of the optional Fire Service Code of Practice in the Kaipara District Plan, to which our witless council agreed. As a consequence we are now seeing Magical Mangawhai being transformed into a tank farm with dedicated water tanks solely for firefighting dominating each new residence that is built.
Yet another enduring legacy of Honest John and his crew.
The irony is that we are destroying the beauty of Mangawhai to provide water to put out fires, but .......... there is not enough manpower to man the fire trucks.
Fighting the Wellington juggernauts whether Fire Service or Local Government is like pissing in the wind, and that is what we might have to resort to if we want to put our fires out.
Mangawhai Fire Fighter
See also Letters to the Editor scroll down to Brigade bullying
THE WHEELS OF JUSTICE DO TURN - BUT SLOWLY 09.10.2015
All is very quiet on the courtly front.
No word from the District Court about the KDC v Rogan case, and nothing from the Court of Appeal in respect of the MRRA v KDC appeal.
The High court Whangarei has finally set a fixture for the Rogan and MRRA v KDC judicial review. This is the note from the Registrar:
Further to the direction of Justice Thomas by her minute dated 23 September 2015, please be advised that the above matter has been scheduled for a three-day substantive hearing commencing at 10am on 9th May 2016 at the Whangarei High Court.
HERALD SLAMS PENNY BRIGHT - UNFAIRLY 09.10.2015
Those of us battling the forces of unlawfulness and incompetence have long wondered why the mainstream press has never taken up our cause or even understood it what it is all about.
All the judges faced with our claims have been highly aware that the claims against the KDC and the commissioners involve some of the most important issues relating to the rule of law and democratic rights that have become before the courts in New Zealand.
But not the press.
The New Zealand Herald has scarcely given our fight a mention and a recent editorial on Penny Bright goes some way in explaining why.
The Herald editorial of 2 October that slammed Penny Bright - Bright's free ride has cost us enough - was slanted and unfair and oozed attitude, and clearly suggested that the Herald had no room for rate "bludgers", no matter how justified they are.
The Herald's piece appears to have been founded on the premise that ratepayers have an absolute obligation to pay rates. It expressed infantile indignation at the refusal of one woman to pay "her fair share", and, of more concern, it avoided any consideration of any legal non-compliance on the part of the council, whilst denigrating Penny Bright on a personal level at some length.
Up here in Mangawhai we know a fair bit about rates. We know that under the Local Government Act there is no binding obligation to pay rates unless the council in question complies with its statutory obligations to consult in advance with ratepayers on the details of the rates.
We also know that Parliament laid down with some deliberate precision in the Local Government (Rating) Act the documentation and information that must be delivered to a ratepayer before the obligation to pay rates is triggered.
The Herald seems oblivious to the fact that a council must perform its statutory obligations to the letter of the law before it can take the moral and legal high ground and insist on payment of rates.
In Kaipara we have been bedevilled for years with a council and commissioners who have acted incompetently and outside the law and have persecuted ratepayers who are totally within their rights to withhold rates because, quite simply, they are unlawful.
The Herald needs to take a step back, stop picking on an easy target, enquire into the real issues surrounding unlawful rating in New Zealand, and present to its reader an informed, balanced, insightful series of articles on how rating practices throughout New Zealand are unlawful and how most councils are thumbing their noses at the rule of law.
THE FLAG DEBATE 01.10.2015
It is worth reading Guy Steward's article on the flag debate, the symbolism behind the flag, and the reasons why John Key is pressing for a change.
A MONSTROUS MISCARRIAGE OF JUSTICE? 30.09.2015
Many will have read the article on Penny Bright in today's Herald and the massive legal bills that the Auckland City has incurred pursuing her for arrears of rates.
Penny tends to polarise. To some she is a folk-hero espousing the interests of a fair and just society, and to others she is a no-hoper who should "get a life" and pay her dues.
The reality is that she has discovered the Achilles heel of local government, and all the whitewash from the Council, the defamatory put-downs, and all the legal pressure they are putting on her, is not going to alter that fact.
All local authorities in New Zealand have the legal right to charge rates but only if, and I repeat only if, they comply with the requirements of the LGA in respect of consultation and only if they comply with the LGRA in respect of rating processes and rating documents.
Unlike taxes which are levied by statutes that are unconditionally binding on all citizens, rates are only binding if they comply with the law.
Local government in New Zealand has long suffered from a chronic case of ADOTROL* disease (see below for the meaning) which has caused it to adopt procedures and documentation that are lazy, slovenly and simply fail to comply with the law. That means that most of the rates set by local authorities are unlawful.
That does not, of course, trouble the government as it has little concern for the rule of law, but if the MRRA or Penny Bright manage to get the District Court, the High Court, or the Court of Appeal to make a stand on compliance with the law, then the cat will certainly be amongst the pigeons opening Pandora's Box (if I can mix my metaphors.)
If Penny Bright and the MRRA are right then all of the rates set by most councils over many years will be in jeopardy. Those of us involved at the mine-face can see one almighty validating bill being rushed through Parliament to remedy the flouting of the law by local authorities, because, after all, that is the standard and only cure for ADOTROL in the eyes of the government.
But spare a moment for Charlotte Marsh who last month lost her house in Manurewa in a court ordered sale for non-payment of rates (see here). Everyone has presumed that the rates were valid and no doubt the ratepayer did not have the wherewithal to employ competent lawyers to present her case. But what if the rates turn out to be invalid and the order for sale had no legal basis?
No doubt the big red carpet will come out and there will be a lot of sweeping thereunder. But there will be a big bump in the carpet that will simply not go away. It will have Miscarriage of Justice stamped all over it.
Local Government fixing the rating problem
SECRETS AND MORE SECRETS 30.09.2015
Alexandra Newlove’s article in the Northern Advocate reported Whangarei councillor Stuart Bell’s criticism of public–excluded workshops.
"I don't agree with having to make decisions on behalf of our community when, because an issue has been deemed confidential, the discussion I can have with the community on it is somewhat limited."
Bruce Rogan of the MRRA responded to the article with the following letter to the editor:
Alexandra Newlove draws readers’ attention (21 September issue) to the amount of business being conducted by Whangarei Council behind closed doors.
It is a timely warning that the district’s ratepayers ought to heed.
The fiscal and human catastrophe that is the Kaipara District Council was caused almost entirely by conducting business in secret.
The Government-appointed commissioners still do most of their business behind closed doors, because they know the level of outrage they would face if the public knew what their reasoning processes really are.
Once a council embarks on a pathway that excludes the voters who put them there, the end result is both grim and utterly predictable. Public exclusion exhibits all the characteristics of cancer. Once it takes hold, it consumes the entire body.
One of the changes that we want to see to Local Government legislation is removal of the right for councils to conduct any of their business away from public scrutiny.
Almost all of the excuses advanced by councils to justify holding discussions in secret are lame at best, and more often than not they exude the stench of corruption.
It’s very simple: if they aren’t able to do things behind peoples’ backs there will never be a need to keep any secrets.
If by not having secret meetings they are prevented from bad-mouthing ratepayers, from striking sweetheart deals with preferred providers, borrowing money illegally, and from agreeing to redundancy packages for employees who should really have gone to jail, so much the better.
It would also prevent councils from keeping the legal advice they receive (paid for by ratepayers) from public view. They might be a little less keen to commit illegal acts if everyone knew before they did so that that was the path they were on.
We all need to remember that the EcoCare project ballooned out of control because of the secrecy that surrounded that project. The Chief Executive conspired with those promoting the scheme to keep everything secret from the ratepayers. Even councillors were denied access to documents and vital information that was necessary to enable them to make competent decisions.
But this was not an isolated instance. Local, Government in New Zealand is fundamentally flawed in that the elected representatives have virtually no power. Behind the facade of democracy you will find an undertaking that is run by unelected people for the benefit of big business. The power exercised by these people is almost limitless, with a lame-dog watch-dog in the Audtor-General (endorsed by her Parliamentary masters), and a government that turns a blind eye to blatant breaches of the law.
Our Local Government watchdog
AND EVEN MORE SECRETS 30.09.2015
How is that when someone goes into central government or local government their individual ethical standards become compromised and they adopt the party line or appropriate political line? Respect for the principles of law or fair play, or common sense for that matter, fly out of the window.
We have seen it in successive Ministers of Local Government who chose to ignore the blatant illegalities of the KDC, and tacitly gave Jack McKerchar and Neil Tiller the stamp of approval for their reckless plunder of Kaipara ratepayers.
The current Minister, the people's champion, the "Westie", Paula Bennett, showing her consummate poitical skills, has duck-shoved responsibility for the Kaipara Curse to the Associate Minister Louise Upston. Louise Upston has placed her head deeply in the sand, abandoned any considerations of justice and the rule of law, and has become cheerleader for the dreadful and dictatorial commissioners who are continuing to thumb their collective nose at legal compliance,
But the ADOTROL* disease is endemic throughout the Beehive. Justice Minister Amy Adams has a severe case of the disease if the NZ Lawyer is correct. An article in that magazine claims that the Minister has refused to disclose details of why the costs of renovating Dunedin's historic courthouse have leapt from $2.5 million to $15 million. Barrister Anne Stevens has slammed the secrecy saying that “scrutiny of decision-making underpins a democracy”. she added:
“[President of Zimbabwe Robert] Mugabe doesn't have an Official Information Act. You can't have accountability without transparency.”Construction, engineering and heritage experts had all slammed the $15 million price tag, she said.
“The fact is all the experts that we've had look at it say that cost has to be out of this world.”
The article also states that Sir Geoffrey Palmer QC, former prime minister and public law expert, backed up Stevens’ concerns and agreed they needed to be assessed by the Ombudsman.
“It seems to me that the minister's decision needs to be challenged,” he told The Otago Times, especially since transparency was “of great value in public affairs”.
For those of us in Kaipara, we have seen it all before. The massive cost blow-out, the secrecy, the cover up, the failure to comply with the law. The failure of government ministers to do their public duty. As Yogi Berra used to say:: "It's deja vu all over again."
*ADOTROL disease: Arrogant Disregard Of The Rule Of Law
Interestingly, while Paula Bennett dumped the Kaipara file on to Louise Upston, Finance Minister Bill English dumped the Lochinver file on to his Associate Minister - guess who? - Paula Bennett. It's the National Party's version of Pass the Parcel, or more appropriately, Pass the Hot Potato. (see Fran O'Sullivan in the NZ Herald: "Odd that Lochinver deal left up to junior".
AND YET EVEN MORE SECRETS 30.09.2015
This time it is Trade Minister Tim Groser who has been struck down with a bad atack of ADITROL. He dismissed an Official Information Act request for more information on the effects of the TPPA and law professor Jan Kelsey and other organisations have filed an application in the High Court for a declaratory judgment setting out the obligations of the government under the OI Act. See Pattrick Smellie's article.
Matthew Palmer QC, the lawyer for the MRRA and son of Sir Geoffrey Palmer, is acting for the applicants.
HONEST JOHN'S GLOSS 26.09.2015
Honest John is back with more spin in the Mangawhai Focus. He paints a cosy picture of a council performing its duties and applying rates to public services including roads and footpaths. parks and reserves and on emergency services. He expresses the desire to keep rates down.
There is no mention of the utter debacle where the KDC fleeced the ratepayers of many tens of millions through the EcoCare rort which enriched all of those who touched it and left the ratepayers to fund a masssive and illegal debt.
He does not mention that that debt will be an albatross around the necks of Kaipara residents for generations to come and that the council cannot even afford to meet the interest payments on the debt.
He stays very quiet about the fact that the KDC has stolen all of the Mangawhai Endowment Fund and other funds and reserves contributed by ratepayers. When Honest John quits Kaipara the cupboards will be completely bare.
He doesn't mention how the commissioners refused to consult with ratepayers on the illegal rates and how they pushed a validation bill through Parliament that is so inept the Judges in the Court of Appeal openly mocked it.
He keeps mum about the fact that the EcoCare scheme and the EcoCare loan agreements have all been declared illegal and yet each year he and his fellow commissioners set rates for an illegal purpose and do not bother to comply with the law in drafting the rates assessment notices and the rates invoices.
Many ratepayers will be fooled, but those who take the trouble to read the following post and understand the magnitude of the Kaipara debt will realise how Honest John and his crew are destroying Kaipara and denying it the opportunity to stand up to the banks and the government and refuse to accept a debt that was incurred by the negligence, the incompetence and the greed of others.
THE BIGGEST DEBT OF ALL 26.09.2015
In the article by Frank Newman (see below) he notes:
During the (Hawkes Bay) amalgamation debate, a key reason against amalgamation was that ratepayers living outside of the Hastings District Council area did not want to be lumbered with their "high" $55 million debt.
He then goes on to point out:
Interestingly, the Whangarei District Council with a population of 84,000 is not much larger than Hastings (population 70,000), but at $156 million its debt is almost three times higher than that of Hastings on a per capital basis - $785 compared with $1,900. That shows how seriously indebted the Whangarei District Council is.
But hang on. If those two councils are lumbered with “high” debts then what about Kaipara?
The debts of Whangarei and Hastings are true debts which consist of external debts and internal debts. Internal debts are where the council has filched ratepayers monies that have been supposedly set aside for other purposes and have to be repaid.
Honest John will not reveal Kaipara’s true debt. The acknowledged debt is around $76 million but there is an unknown amount that was stolen from various monies held in trust which is hidden somewhere behind the smokescreen that has emanated from the Council’s offices.
The Mangawhai Endowment Fund – held on trust by the Council for the people of Mangawhai - disappeared without trace during the heady days when Kaipara was plundered by all and sundry. No one knows where it went. All we know is that the money has long gone even though the commissioners persist with the fiction that it is still there (as a paper entry).
Likewise, all the reserve funds, depreciation funds and many other funds contributed by ratepayers for various specific purposes have all been gobbled up by the Council and no longer exist.
If all of these funds were to be reinstated then it might well add a further $20 million to the KDC’s debt. That means that the true debt could be as high as $96 million.
So how does that compare with the highly indebted Hastings and Whangarei?
Hastings with a population of 70,000 has a debt of $55 million which is $785 per capita. Whangarei has a population of 84,000 and a debt of $156 million - $1,900 per capita.
And the winner is ……….Kaipara. By a country mile. Its population is slightly under 19,000. With a debt of $96 million the per capita amount is $5,052.63. Based on the acknowledged debt of $76 million the per capita amount is still $4,000. That is more than twice the debt of Whangarei and over 5 times the debt of “highly” indebted Hastings.
Bear in mind that the per capita amount is for every man woman and child in Kaipara.
It is even worse than that. The EcoCare debt accounts for $58.8 million of the total KDC debt. The missing $20m million should be added to that debt as it disappeared somewhere down the EcoCare gurgler.
EcoCare proceeded on the basis that the whole EcoCare debt was to be a segmented debt. This elaborate device was invented to avoid the strict borrowing to income ratio and allowed debts that were “self-supporting” to be excluded from the ratio. Self-supporting meant that the income from those who used the system – through rates and charges – was sufficient to meet all the outgoings on the project. This meant interest, capital repayments, maintenance, operation costs etc. Other ratepayers in the district were assured that they would never have to contribute to the debt.
The whole thing was a rort from start to finish. How could a thousand or so users ever support a debt of the original $35 million plus operating costs etc? And how could they support the final debt of $58.8 million, or $78.8 million depending on your point of view?
Of course the Council and its advisers fudged all the figures and invented all sorts of scenarios to justify them.
However, despite all the promises that the project would service 4,500 connections, the reality is that the 2015/2025 LTP shows that in January 2015 - some 10 years after the original projections and 9 years after the increased projections - there were just over 1,700 actual connections to the scheme. The commissioners have also made it clear that the scheme has virtually come to an end and no more connections can be made without a new disposal method and more capital investment in reticulation.
The commissioners have long reneged on the segmented debt promise. It has been consigned to the broken promises/misrepresentations bin and never mentioned again. But if it were to be reinstated, and Larry Mitchell, the KDC adviser on the matter at the time, insisted that it be set in legal concrete, then 1700 properties would be bearing the full costs of running EcoCare and repaying the EcoCare debt of $58.8 million, or $78.8 million. That is $34,588.24 or $46,352.94 per connection for the debt, plus the interest, plus the maintenance and running costs.
The commissioners are desperately trying to salvage the Mangawhai white elephant. They are committing another $2.7 million to immediate works and will then need another bottomless pit of monies to try and turn a lemon into a soufflé. The propaganda machine is in top gear with the so-called Advisory Panel, hog-tied by its terms of reference and its attitudes, scarcely getting its head out of the sand and looking at the reality of the situation.
The ratepayers of the district need to look long and hard at the facts and the figures. They simply do not work and they will never work because the debt is too large for the people of the district, because the debt has been declared by the High Court to be illegal, and because EcoCare is a lemon and always will be.
Honest John has got a year to go, on paper at least. His aim is to stitch ratepayers up before be goes and leave behind an everlasting debt that will cripple Kaipara for decades to come. Ratepayers have to look at the figures, to take note of the level of their indebtedness, and make some very brave decisions about whether they are going to be taken for a very expensive ride, or whether they are going to draw a very firm line in the sand and say “enough is enough”.
FRANK NEWMAN ON AMALGAMATION 25.09.2015
Take a look at Frank Newman's article on the Hawkes Bay coffin-nailer for Super-Cities.
He makes the following comment:
Rousing people usually requires the relentless commitment of conscientious and committed individuals who are prepared to sacrifice their time, and usually their money, for the cause. Fortunately there are such people in the Hawke's Bay. They did a good job countering the misinformation put out by the Yule lead group and the LGC.
Compare that with Kaipara. We have an imposed dictatorship put in place by, and supported by, the government, that is dedicated to acting in the best interests of the government and the banks. It has access to a bottomless pit of money - the rates - which it is free to use to stymie ratepayers' legal challenges, and to create an almost impenetrable wall of propaganda.
The article goes on to say:
I have no doubt that had the LGC persisted with its amalgamation agenda for Northand, that too would have been defeated, and by an equal if not greater margin than was the case in the Hawke's Bay.
True, because each ratepayer would be given a vote. However,at present we are forced to endure the dictatorship thrust upon us because John Key's government has denied us our democratic rights whilst at the same time it compels us to pay our local taxes.
Hawkes Bay may be lauded as a victory for democracy but in Kaipara that means nothing. We have no democracy. It has been deferred for another year. And the chances of it being restored next year are minimal. John Key cannot afford to let the people of Kaipara have their say on what happens to the illegal debt. They might tell him where to shove it.
BENDING THE RULE OF LAW 25.09.2015
The government has been caught bending the rules again. It has been revealed that Work and Income has been underpaying beneficiaries since 1998 by delaying payment of benefit after a stand down by one day later than the date of entitlement.
Note that this is a blatant failure to comply with the law of the land. What the government has done is unlawful and beneficiaries are legally entitled to the monies they are owed
The amount owing could run into millions but Social Development Minister Anne Tolley has downplayed the amount the mistake could cost the Government in unpaid benefits, and said it would not be a “huge amount”.
However, the government is introducing retrospective legislation to change the law so that it does not have to pay the underpayment. The Minister advised that the amendment to the law would line up with what was happening in practice.
I suggest that you read the last sentence again.
The Minister advised that the amendment to the law would line up with what was happening in practice.
What it means is that if this government gets it wrong and fails to meet its clear legal obligations, it simply retrospectively changes the law to tie in with what it has done.
Legal compliance means absolutely nothing. The Key government simply moves the goal posts.
That is of concern, but, perhaps more importantly than that, National is not at all squeamish about its contempt for compliance with the law and observing the rule of law. Political convenience and cost are the ONLY considerations.
Would John Key and Anne Tolley carry on like that in their own personal life? If they regularly exceed the speed limit and are finally given a ticket would they press Parliament to change retroactively change the speed limit so that it was in line with what was happening in practice.
And what happens when the boot is on the other foot?
Say, for instance, if the government makes an OVERpayment. Would it apply the same reasoning as it does to underpayments?
It turns out that the Novopay debacle more than 2000 teachers were allegedly overpaid because of defects in the system. Most have repaid the overpayment but now the government is looking to sue those who have not repaid the overpayment.
No suggestion of retrospectively changing the law in line with what happened in practice
HAWKES BAY SHATTERS DREAMS OF KEY AND BENNETT 18.09.2015
John Key’s dream of local government in New Zealand consists of a few unitary authorities effectively run by, and for the benefit of, big business, with a thin veneer of democracy in the guise of ratepayer elected councillors who have absolutely no say in what goes on, together with ratepayers footing the bill for all the debts of councils irrespective of whether they are compliant with the law or financially prudent.
But that dream is slowly crumbling. The unitary authority scheme, which the supposedly independent Local Government Commission (LGC) under the abrasive Basil Morrison unashamedly tried to force on New Zealand, has taken another mortal blow with Hawke’s Bay’s rejection of amalgamation into a unitary authority.
The abrasive Basil Morrison
That follows quickly on the heels of the LGC announcing that it would not pursue amalgamations in Northland or Wellington.
Hawkes Bay Today reports the response of Local Government Minister, Paula Bennett:
In reaction Local Government Minister Paula Bennett said Hawke’s Bay residents’ decision to keep their current local government structures shows the value of letting communities decide.
“I have consistently said that it is up for communities to decide what they want local democracy to look like in their towns and cities,” Mrs Bennett says.
“No matter what the structure is, New Zealanders’ expectations of local government are quite clear. They want their local leaders to focus on promoting strong regional growth, spending ratepayers’ money wisely, and provide outstanding customer service."
None of which, of course, applies to Kaipara. Where is “the value of letting communities decide" evident in Kaipara? And why can other council districts have the choice of what local democracy looks like when poor old Kaipara is denied any democracy at all. Thanks to Paula Bennett.
The people of Kaipara and the people of New Zealand need to recognise that Paula Bennett has betrayed the cause of democracy in Kaipara. She is possibly an heir apparent to John Key and much of her popularity rests on the perception of her being a “Westie” with a grounded, honest approach to life. That is the image that she strives hard to maintain. She showed her political nous by side-stepping the poisoned chalice of Kaipara by dumping it on to her Associate Minister Louise Upston.
Louise Upston is doing the dirty work for Paula Bennett and imposing the sort of democracy on Kaipara that many totalitarian states would be proud of.
What we need to remember is that Louis Upston is a puppet whose strings are pulled by Paula Bennett. Upston has taken on the role as Cheerleader for Honest John. She is a bit like one of the courtiers in the Emperor’s New Clothes fairy tale extolling the virtues of the fine livery that the emperor is supposed to be wearing.
Well, isn't he wise, isn't he fair! Look at his charm beyond compare!
Our Honest John is all together
But all together, he's all together
The most remarkable commissioner that I have ever seen
(With apologies to Danny Kaye)
But it is back in Wellington that Paula Bennett is making the decisions. She is fully aware that the Kaipara debacle came about because of the failure of the Key government (including successive Ministers of Local Government and John Key himself) to heed clear evidence that was presented to them again and again by concerned ratepayers that the KDC was persistently flouting the law and was out of control.
That is absolutely undeniable, but truth will never get in the way of politics. Paula Bennett will do everything within her power to ensure that the ratepayers of Kaipara are shafted and forced to pay the the whole of the illegal EcoCare debt. And, until that deal is stitched up, she is going to deny the people of the district any smidgen of democracy.
"It is up for communities to decide what they want local democracy to look like in their towns and cities."
But not in Kaipara!
LOCAL GOVERNMENT CORRUPTION SCAM 14.09.2015
Tonight, Monday night (14 September 2015), 9pm on Face ( access ) TV. Sky network channel 83
NZ's MASSIVE Local Government Corruption Scam, Paradigm Episode 2
Bruce Rogan (Mangawhai Ratepayers) and Penny Bright interviewed by Vinny Eastwood.on council corruption in New Zealand.
See the promo video here.
See Bruce Rogan's rates revolt speech here.
ECOCARE (PONZI SCHEME) MARK 2 14.09.2015
After months of unadulterated propaganda put out by the Mangawhai Focus relating to the future of EcoCare and the Commissioners' hand-picked panel, it has finally added some balance with a letter from Christian Simon slating the proposals. He ends with the comment:
Dear Commissioners, I strongly advise you not to use the final report of the Advisory Panel as an ongoing consultation process to prefix mandatory connections. When there is no proper reason for mandatory connection, not moneywise and not for the environment, then it would be a crime to do so. Don’t promote a last century technology and nail the community to this, imposing more debt only to create another playground for consultants and corporations. You can be sure that this would create your next court case. This time the ratepayer will not wait till the millions have disappeared.
COURT OF APPEAL 14.09.2015
Kaipara Lifestyler: See Paul Campbell's excellent article here
Mangawhai Focus: Some surprisingly balanced reflections on the future of Kaipara in Ed Said - What future for Kaipara? See also the Focus' summary of the Court of Appeal hearing under Rates appeal hearing well fought. Again, a fairly balanced view except for the opening comment:
Following an earlier decision in the High Court which found in favour of the Kaipara District Council......
We need to remember that the High Court found:
1. That the decisions to enter into EcoCare and the loan agreements, and the project contract and the loan agreements themselves, were all illegal.
2. That the Validation Act breached the NZBORA rights of ratepayers by denying them the right to judicial review.
However, the High Court went on to find that the loan agreements were enfoceable against the council (not disputed) which entitled the council to set rates for an illegal purpose to meet its lawful commitments (disputed).
The High Court also held that the limitation of the rights of the ratepayers was manifestly justifiable (disputed). Effectively this meant that the rights of ratepayers had to bow to the "general good".
Those last two issues are the basis of the appeal.
COURT OF APPEAL 28.08.2015
From: GRAHAM MACKENZIE
Congratulations to the MRRA and Clive Boonham for an outstanding court case. I like many of our community sat respectively through the hearing.
The issues are very clear, is it reasonable to expect our local and national government to act within the law.
The Kaipara District Council acted unlawfully some 66 occasions leading to a catastrophic debt which can never be repaid. The unelected Commissioners have acted without competence thus adding the problems. The MRRAs case is compelling.
We await the Judges' judgment and a negotiated settlement.
COURT OF APPEAL 28.08.2015
The first cab of the rank to report on the Court of Apeal hearing in Wellington was town planner Joel Cayford, who was once on the executive of the MRRA. His detailed comments on the hearing can be found here.
See also: John Weekes at NZ Herald
COURT OF APPEAL - LEGAL EAGLE COMMENTS 28.08.2015
Legal Eagle's comments on the Court of Appeal hearing can be seen here,
WHO WAS THE LONELY MAN IN WELLINGTON? 28.08.2018
Those of us who attended the Court of Appeal in Wellington had a good time. We have fought this battle for justice for a long time and, finally, we had our day (or two) in court. The people of Kaipara need to take a bow for fighting the battle for so long and for putting their trust in the MRRA and its legal team in its quest to bring the rule of law back to Kaipara. There was some wonderful camaraderie forged out of a shared and just commitment.
However there was one solitary, lonely man who appeared to have lost his way and tumbled into court by accident. He was ever-smiling and tried desperately to engage with others, but without success. He seemed terribly lonely and only managed to engage with the legal counsel for the KDC.
It must have been a salutory lesson for Honest John to see so many MRRA supporters in Wellington and in the Court in Auckland and realise that the MRRA and its supporters have not lost their way. His ears must have glowed when the incompetence of the KDC was recited at length by the court, with pained, unbelieving expressions from the judges. And he knows that it is not just the previous council that made an art form of incompetence and illegality, because the Commissioners have carried on in the same tradition. Even the Validation Bill drafted by the commissioners and their legal team raised the eyebrows of the judges because of its glaring incompetence. The rating documentation vetted in detail by the commissioners highly paid legal advisers has proved to be almost as bad and legally non-compliant as the previous council's. Another major court battle looms. With all that, and the bank yapping at the door, these are not good times to be a commissioner and it would have been a lonely few days for Honest John in Wellington. But I am sure while he was there he could have gained some succour from his two foremost cheerleaders, Louise Upston and Lynn Provost in Wellington. In their eyes Honest John can do no wrong.
BRUCE ROGAN ON MIKE HOSKING 28.08.2015
Hear Bruce Rogan on Mike Hosking on Newstalk ZB
ABUSE OF LGOIMA PROCEDURE 28.08.2015
The abuse of legal requirements by Honest John and his crew continues unabated with a refusal to comply with a LGOIMA request (Official Information) to provide a copy of legal advice.
Bruce and Heather were a test case in the District Court in respect of the numerous legal proceedings that the commissioners have filed against good, honest citizens of the district who have refused to pay their rates on the basis that their rates invoices and rates assessment notices do not comply with the law in many respects.
Those invoices and assessments were vetted in detail by the KDC’s solicitors who overlooked simple failures to comply with the obligatory requirements of the LGRA.
Late last year we had Honest John and his crew thumbing their collective nose at the KDC’s policy on penalties remission, and on the decision–making processes in the LGA when they made a predetermined decision to remit certain penalties as a sop to Parliament, even though such an action was outside the ambit of the KDC’s own policy on penalties remission.
They advised that they had a legal opinion on the matter, but refused to say whether that advice supported their decision, and they refused to provide a copy of that opinion following a LGOIMA request by Legal Eagle.
Local authorities use the claim of legal privilege to prevent any legal opinions seeing fresh air. That way they can pretend that the opinion justifies the action that they have taken when in fact the opinion may in fact advise that the action is unlawful.
We have to remember that lawyers are hired guns and act in the best interests of their clients. In this case, their clients are the commissioners and their lawyers give advice solely on the basis of instructions received. A legal opinion will therefore be tailored towards the desired outcome.
In Jack McKerchar’s days I obtained copies of the KDC legal opinions which, in most instances, he kept secret from not only the ratepayers but also the councillors. At times there was one opinion for publication to rebuff ratepayers’ claims, and then another for Jack himself with the real advice.
On one occasion Jack McKerchar advised the councillors that a legal opinion from the KDC’s solicitors had confirmed that his documents were legally correct and that Legal Eagle’s allegation of non-compliance were ill-founded. A letter to the firm involved soon confirmed that they had not given such advice and had never seen the KDC’s documents.
If the commissioners had nothing to hide, and a genuine legal opinion could help resolve the situation, then it would be foolish to hide it away, but one can take it virtually as read that the commissioners have a massive amount to hide.
In this particular instance I sought a copy of the legal advice received earlier this year in respect of the legality of “oldest debts first” policy included in rates assessment notice and rates invoices, and a copy of the annual legal review for the rates notices which had been issued, and which gave them a clean bill of health. That is, despite oodles of fundamental defects.
Both applications have been declined.
I am not sure who Honest John uses for legal advice and who is responsible for the annual legal review but I can give him some free advice, and which is not privileged: Whoever gave the rates notices a clean bill of health, does not know what they are talking about and should be fired. If fees were paid for such advice then the commissioners should be demanding a refund of ratepayers’ money.
But one good thing came out of the wood-work. The letter declining the LGOIMA request was actually signed by the Chief Executive, Jill McPherson. This is one of the first occasions when she has “fronted” and put her name to a letter. Perhaps there has been a shift. We were all numbed by the total disregard that the commissioners showed for legal process when they put up Alison Puchaux, a recent employee, as a witness in the District Court and she was unable to answer most questions in cross examination because of her limited experience. It was a hot seat to occupy, and it is a seat that the Chief Executive should have occupied, earning her salary and defending the actions of her council.
HANNAH ARENDT AWARD 28.08.2015
Those who did not attend the presentation to Bruce and Heath Rogan last Saturday missed a treat. Christian and Ulla Simon put on a splendid evening to highlight the contribution of Bruce and Heather towards the fight for democracy. There were displays, speeches, good food and refreshments and some convivial conversation. Perhaps the highlight of the evening was the address of guest speaker Chris Sellars - Prof Worzel of the Mangawhai Focus - who presented some amusing but thought-provoking comments. But, in the true tradition of Kaipara, even he denied us the democratic vote. He told the audience that he was going to give them the choice of a short poem or long poem to round off his address, but that he had decided on the long one. We were all pleased he did. It was a bit of Banjo Patterson, a bit of Sam Hunt, and a lot of Chris Sellars. It was delightful.
It was heart-warming to see such a large crowd of staunch people who had come from all over the district, and some from Auckland to show their appreciation for, and their solidarity with the Rogans and the MRRA in their fight for fairness and democracy. It was reiterated time and time again that it was not the MRRA that had "lost its way" in its pursuit of fairness, justice and democracy but the three autocrats who forcibly govern Kaipara with the purpose of protecting the interests of the banks and those in local government and do not give a jot about the people of the district.
Regardless of what happens in court, ratepayers in the district and all over New Zealand are beginning to realise that local government in New Zealand is a flash-back to feudal times where those with the power are free to do whatever they like without any effective legal controls or requirements of prudence or legality, and the peasants at the bottom of the pile are compelled by the law to pick up the bills.
BRUCE AND HEATHER ROGAN TO BE HONOURED 22.08.2015
Don't forget this evening:
Mangawhai Library Hall from 5 p.m. on Saturday the 22nd of August 2015.
Bruce and Heather Rogan to be awarded the Hannah Arendt Award for their work in defence of justice and democracy.
BUS TO COURT 22.08.2015
For those who want to go to the Court of Appeal in Auckland by bus to see a live video of the Wellington Court of Appeal hearing, see the details below from the MRRA.
Final details for Bus to Court.
Bus leaves The Club (Molesworth Drive) at Mangawhai at 7:45am, Tuesday morning and approximately eight minutes later from somewhere around the Smashed Pipi.
More the merrier
There will be spare seats, so if you know anyone who wants to go to Auckland for the day for shopping or sightseeing, or to use their Gold Card, they can do it for $25.00 return. They just have to show up.
If you want to be picked up ring Barbara on 4314420 and tell her exactly where you will be. The bus is stopping to pick up a passenger at Hatfields Beach, but it could pick others up along the route..
LET THE BATTLE COMMENCE 18.08.2015
We have the venues in Wellington and Auckland (see below). We have the judges: Harrison J, Miller J, and Cooper J.
The legal submissions have been filed by the MRRA, the KDC and the Crown.
David Goddard QC, Matthew Palmer QC, and Paul Rishworth QC are all ready to give it their best shot.
Honest John may put all sorts of spin on this court case and the motives of the MRRA in an attempt to justify his own conduct, and whitewash his incompetence, but it is perhaps one of the most important cases relating to the rights of ratepayers to come before the courts in this country.
The simple question is whether a local authority can flout the law, ignore its legal obligations, and set a rate to meet an unlawful activity. (The decision to proceed with EcoCare has already been declared to be illegal by the High Court.)
COURT OF APPEAL WELLINGTON, 25 AND 26 AUGUST 2015 18.08.2015
This information is from the Court of Appeal:
We will make sufficient seating available in Courtroom 2 at the Court of Appeal, Corner of Molesworth and Aitken Streets, Wellington.
If it assists, as changes can sometimes occur for a variety of reasons at the last minute, I will let you know immediately. Also, your members can check the Court of Appeal daily list from approximately 4pm on the day prior at: http://www.courtsofnz.govt.nz/business/calendar/daily-lists
This list is also displayed in our Court foyer. If a change did unexpectedly become necessary, it would be to the High Court which is only two buildings away from this Court.
The Court calls the case at 10:00am in the morning. The Courtroom will be opened at 9:40am to allow everyone time to be seated well in advance of 10:00am. We adjourn for 15 minutes at approximately 11.30am, and the lunch adjournment is from 1pm-2.15pm. We finish at 4:00pm.
Courtroom 2 is on level one of this building. There is a public lift to that level. The toilets are on the ground floor, to the left of the glass dome.
I note some Court protocol for information. Entry and exit to the Courtroom should be avoided (where possible) when the judges are speaking, but is fine when the lawyers are speaking. Only water is allowed in the courtroom (no food or other drink), and no note-taking is permissible in the public gallery without seeking permission from the Court Registrar (who will seek permission from the bench). No hats, tidy dress etc. which I'm sure your members will be aware of.
The Auckland courtroom, being used to view the hearing, technically becomes part of the public gallery, so the same protocol applies to those observing in Auckland.
I hope this assists. (Signed Fiona McDonald, Registrar)
COURT OF APPEAL, AUCKLAND 25 AND 26 AUGUST 2015 18.08.2015
Update from Bruce Rogan of the the MRRA - Court of Appeal 25-26 August 2015
Confirming the good news, we CAN have the Auckland Court of Appeal hearing centre. The court will arrange for the video feed and there will be no charge to us.
Please consider your availability to attend these sessions, and please, if you are based in Auckland, invite your friends to come along and watch. What happens here is relevant to everyone who pays rates in New Zealand (but especially Aucklanders!).
There are now enough people to justify it, so we will organise a bus to go from Mangawhai in the morning and bring everyone back at night. This will remove the need for people to take their cars and find parking. You will get dropped off at the door of the court, and picked up from there for the return. Will someone please volunteer to be bus monitor. I won’t be here (in Wellington), and John Bull is going to be staying in Auckland for those days. (phone me on 02108180162 please)
The court has given precise information about where the Auckland event will take place. The sitting times are 10.00am until 4.00pm. The court sometimes extends its sitting hours if it deems necessary.
For those making their own way to the hearing here is the information you need:
Level 11(eleven) , 280 Queen Street. Unichem sign indicates you are at the right address. Smith and Caughey are across the road. Take escalator to level 2 then go to the lifts behind the marble wall. You can also enter 280 Queen St from Lorne St. Opposite Khartoum Place. Salad bar called Revive to left of the stairs. If you enter from Lorne street you are already at level 2.
If you have not already done so please reply if you will take advantage of the bus from Mangawhai. Please simply say BUS and number of seats required. If you have non-email friends who would like to use the bus can you please send us details on their behalf.
BRUCE AND HEATHER ROGAN TO BE HONOURED 18.08.2015
This message comes from the MRRA
Notice of Meeting.
Mangawhai Library Hall from 5 p.m. on Saturday the 22nd of August 2015..
Over recent years the Mangawhai Ratepayers and Residents' Association have maintained a relentless and well organised campaign seeking justice on behalf of our community.
Their efforts have been and continue to be stymied, from the highest levels, by organisations such as the Office of the Auditor General, by Parliament, and by Ministers of Local Government whose real responsibility it is to uphold and enforce the laws that were designed to protect us, but who have instead twisted those laws into weapons to attack the community. In this they have been aided and abetted by a complicit local media, and even by elements within our own community.
The German Philosopher Hannah Arendt observed that it is the inaction of otherwise good people that creates the environment in which abuses that would ordinarily be unacceptable are committed and tolerated.
Her studies into the dynamics of power and the human condition were interrupted when the Nazis took over German Universities in 1933 and she was forced to flee to New York where she continued her work until her death in 1974.
The Hannah Arendt Prize is awarded to those doing substantial work in defence of justice and democracy.
In the spirit of this award we would like to honour the efforts of the Chairman of the MRRA Bruce Rogan and his wife Heather to show our gratitude at a gathering to be held at the Library Hall this coming Saturday at 5.00pm. Nibbles and refreshments will be served.
Everyone is welcome, and we hope it is a time to put our differences aside while we take an hour to recognise that our democracy is precious above all personal and parochial considerations.
There will be a few short speeches, and anyone who would like to address the meeting will be invited to do so, and there will be an opportunity to ask questions about the up-coming court proceedings next Tuesday and Wednesday.
Hon Sec MRRA
Please reply to: email@example.com
MINISTERIAL LA LA LAND 04.08.15
Some readers are seriously troubled at Associate Local Government Minister Louise Upston's gushing loyalty to her new "bestie", Honest John. She is reported in the Mangawhai Focus and the Kaipara Lifestyler for her lavish praise for the competence of Honest John and his team and the widespread support from ratepayers.
We have seen it all before. That it is how politics works. We have seen how Serco was awarded and "exceptional" commendation for its running of Mt Eden - just before the proverbial hit the fan. Everyone knew about the corruption in FIFA and yet all the officials covered it up.
Those of us who have been battling the Kaipara disease for many years remember referring legal submissions on the persistent and outrageous illegalities of the KDC to the Auditor-General. She imperiously swept them aside even though every allegation subsequently proved to be absolutely correct. One got the distinct impression that the OAG - the so-called watchdog of local government - did not care about the illegalities, and that its employees did not even have a basic grasp of the law relating to rates.
We now read the column of Rodney Hide in the Sunday Herald where he is the voice of common sense and fair play, But many of us will remember him as the Minister of Local Government who ignored endless complaints and legal submissions, who turned a blind eye to Kaipara's illegalities, and gave the Mckerchar/Tiller Council a free-hand to to plunder the ratepayers of the district.
He is one of the reasons that the government should be putting its hand in its pocket to pay for its part in the debacle.
Louise Upston, Rodney Hide, and all the others who played the role of Minister and mouthed the words that others wrote. They are mere pawns in the game of politics. They do as their masters tell them.
And talking of pawns, one has to look at the role of the the local newspapers who publish press releases on highly contentious local matters as factual articles. Where is the balance? Where is the integrity?.
BENEATH THE SURFACE 04.08.15
Honest John, Chair of Commissioners, has his own column in the Kaipara Lifestyler where he churns out his self-justifying propaganda. He calls it Beneath the Surface, which is an odd name for somone who boasts of his integrity, transparency and good governance. It sounds very murky, secret and out of sight.
Given his predeliction for pursuing ratepayers through their banks or through the courts, one can see him as a Great White Shark circulating beneath the waves ready to snap up a stray ratepayer.
In the latest edition under Court Updates he advises that the Council is "still tied up in Court proceedings related to matters of history". That of course, is not strictly correct. He uses the word historic to refer to the illegal rates set by the previous Council and which were supposedly validated by the Validation Act. He likes to maintain that since he and his mates arrived in October 2012 everything has been kosher and above board and that all the rates set by the Commissioners have been legal.
The Rogan defence team pointed out in the recent District Court case that all the rates invoices and rates assessment notices issued by the Commissioners for the last three years are invalid. And, if the Court agrees, the setting and assessing of their rates are also unlawful.
The adding of penalties to the rates arrears of both the KDC and the NRC are also in breach of the Rating Act.
The KDC acknowledged in the District Court, after receipt of a legal opinion, that its "oldest debts first" policy was illegal. Regardless of that it still included the policy in its rates invoices. However, the KDC maintains that it has now fixed the illegality and a legal compliance review has confirmed that the current rates notices are legally compliant.
Legal Eagle has made an Official Information request for copies of the legal opinion and the the legal compliance review. It will be interesting to see if Honest John breaks the surface and openly and honestly shares the real facts with ratepayers, or whether the truth is left well-hidden Below the Surface.
CROWN INTERVENES IN COURT OF APPEAL 30.07.15
Clearly there is some consternation in the Beehive in respect of the MRRA Court of Appeal case which is due to be heard in less than four weeks.
The Crown through the Attorney–General sought leave to intervene in the proceedings just a week or so before the MRRA was due to file a copy of its pleadings.
The “Crown’ is not of course the Queen but the government in power, John Key’s National Party. Clearly the government is concerned that the MRRA may be successful in its appeal and is bringing up the big guns in a last ditch attempt to sway the Court.
The government is being represented by Paul Rishworth QC, a highly respected academic who was called to the inner bar and specialises in Administative Law.
The KDC, naturally, did not oppose the application to intervene. The MRRA left the matter to the discretion of the Court itself after pointing out the delay in intervening, the tightness of the two day schedule, and the extra costs involved for a ratepayer group.
In its decision the Court of Appeal held:
 We think that intervention is warranted here. The Attorney is not interested in all of the issues that may arise on the appeal, but those listed above are matters of high principle. We think the Court is likely to benefit, as the High Court evidently did, from the Crown’s perspective notwithstanding the expertise of leading counsel for the parties, and intervention can be permitted on terms that should add little, if anything, to the appellant’s burden.
The outcome is:
The Attorney may appear by counsel at the hearing, but will be called upon only if the Court wishes to hear from counsel and there is time available;
This case is of massive importance for citizens of the is country as it pits the limitless power of Parliament against the rights of individual New Zealanders enshrined in the New Zealand Bill of Rights Act (NZBORA).
Parliament passed legislation validating the illegal EcoCare rates whilst the MRRA was before the High Court challenging the validity of those rates. Heath J held in the High Court that Parliament breached the rights of ratepayers under NZBORA, but that it was a justifiable exception to the right. Justifiable exceptions are allowed where the benefit to society outweighs individual rights.
The MRRA is challenging that justifiable exception finding and wants a declaration that Parliament breached the rights of the MRRA ratepayers.
So far no court in New Zealand has made such a declaration and the government no doubt has intervened in the case to try and persuade the Court not to issue such a declaration. It would not look good if John Key’s government was declared by the Court of Appeal to have breached the rights of New Zealand citizens.
However, Paul Heath has spoiled the party. In a decision last week in the High Court he declared that the government had breached the rights of prisoners by passing legislation denying them the right to vote. The case – Taylor and Ors v Attorney–General – can be seen on the Courts of NZ website. Scroll down to High Court judgments and click on the case name.
It is worth a read and includes all the legal argument that, perhaps, would have been appropriate in the MRRA v KDC in the High Court.
The MRRA case is one of the most important cases involving the rights of ratepayers in New Zealand to come before a higher court. The decision from the Court of Appeal is going to tell us whether the rights of ratepayers, supposedly protected by NZBORA, the LGA and the LGRA, are real or illusory, and whether local authorities in New Zealand are required to comply with the rule of law.
MANGAWHAI ENDOWMENT FUND'S DAYS ARE NUMBERED 29.07.15
The Bream Bay News reported in its edition of 23 July 2015 that it is inviting donations from those who want to contribute to a permanent legacy for the long term benefit of Waipu.
It’s a good job that Waipu is not part of Kaipara otherwise the endowment fund might go the same way as the Mangawhai Endowment Fund. That fund was supposedly held for the benefit of lands adjoining the Mangawhai Harbour. However, it was not invested separately and during the wild days of the McKerchar/Tiller regime disappeared down the financial gurgler along with countless other millions.
The Mangawhai Endowment Fund - now called the Mangawhai Endowment Lands Account (MELA) - is now a myth. A small amount is still held in properties but the rest is simply a book entry. Each year the commissioners go through a charade of allocating the interest to just causes. But there is no interest because the fund does not exist. Council simply pays what it calculates would be interest if the fund existed and takes the monies from rates paid across the district.
The commissioners treat the loan as an internal debt which means that it is not taken into account when calculating whether the Council is solvent or not. But if the debt, supposedly held on trust by the KDC, is to be repaid then it can only be repaid by raising an external debt, which all ratepayers will have to pay, interest and all.
In a report to the KDC from Linda Osborne of 30 June 2015 the position was stated as follows:
The MELA account is listed as a reserve in the accounts of Council. No cash fund exists
The report recommended that the present situation where the capital is protected, decided by ratepayers back in 2001, should be abandoned and replaced with the following:
Option B of spending all of the interest without protecting the capital would allow more funds to be available for community distribution. It would also allow Council to spend more effectively to reduce the capital and positively benefit Mangawhai.
Behind the weasel words, what is the purpose of this new approach? Whatever it is you can guarantee that it is not for the benefit of ratepayers. One can only presume that it is a way of running down the capital of the fund so that this embarrassing part of Kaipara’s history is finally expunged.
And remember that it is not the fund that is being run down because there is no fund to run down. Every payment that is made to ratepayers ostensibly from the “fund”, whether in the form of interest or capital, has to be paid by ratepayers throughout the whole district in rates, and then it is paid to the chosen few.
So who decides how the fund is to be spent. The Osborne report suggests that the commissioners have sole power:
Council is the legal holder of MELA and therefore has the jurisdiction to decide how it is spent, ensuring it is for the benefit of the Mangawhai community and/or environment.
You may argue, quite rightly, that the KDC are the trustees and may have the fund vested in them but they have a legal obligation to consult with beneficiaries, the ratepayers.
Now follow this carefully and see how the commissioners manipulate consultation to secure their own ends.
The report states:
Discussions have been held with the current MELA Committee who are also members of the Mangawhai community. The Committee have the delegation to allocate grants and are in agreement with Council’s alternative approach.
Let’s look at this comment closely as it sums up the dishonesty and the appalling governance of the commissioners.
The MELA committee, who are in agreement with the commissioner' approach, consists of:
Chair: John Robertson (Commissioner)
Members: Joanna Roberts, Alan Russek, Richard Booth (Commissioner)
Linda Osborne states that the current MELA committee are members of the Mangawhai community. Not true. Two members are but commissioners Richard Booth and John Robertson have nothing to do with Mangawhai.
The report states that the committee are in agreement with the Council’s approach. That it scarcely surprising when two of the members of the committee are commissioners, and the other two were appointed by the commissioners.
But what of the views of ratepayers?
As they are the recipients of MELA, the Mangawhai community may have strong opinions on how it is spent, especially if it affects the amount that local groups can access for funding purposes. Given there would be more funds available to allocate to the community it is thought they would view this decision as favourable.
So there is no intention to actually consult with ratepayers. All decisions are to be made by three unelected commissioners who consult with a committee of two of the unelected commissioners and two unelected ratepayers selected by the commissioners.
A resolution confirming the new approach was passed unanimously by commissioners Robertson and Booth at the June council meeting – no doubt wearing their hats as commissioners and not committee members. Commissioner Winder was absent attending the Rogan hearing in Whangarei.
Legal Eagle has presented his concerns about what he considers to be theft of the Mangawhai Endowment Fund to the Auditor-General. No doubt there will be the usual resounding silence.
Associate Minister Louise Upston, who heads Honest John Robertson’s Cheerleaders, is not so silent. She recently visited Kaipara and met with the MELA committee and other groups. She commented:
“I was impressed by the great work that these groups are doing in their communities using their creativity to help make each of their towns vibrant and inclusive places.”
What she did not do is ask the people of Mangawhai about the creative accounting that has led to the theft of their endowment fund and the complete failure of her favourite three smart boys to include ratepayers in any consultation process about the future of the fund.
URGENT MESSAGE FROM THE MRRA 28.07.15
Court of Appeal 25-26 August 2015
I have been in contact with the Court and discussed the widespread interest through our community in these proceedings.
We know of some of our members who are going to go to Wellington to be present at this important test of our democracy.
There is limited space for the public at the Court of Appeal, but the Court has offered to try to find a bigger venue to accommodate more observers, if required..
If you are going to go to Wellington for this hearing could you please let me know by return email so that we can get an accurate estimate of the numbers attending. Please let me know again even if you have already done so. Reply with the word WELLINGTON and the number attending. Do this today if you can please.
In addition, the Court has kindly offered to create a video link to the Whangarei court so that those who want to follow proceedings without incurring the cost of travelling all the way to Wellington can do so.
There is quite a lot of work involved in setting this up and the Court is anxious to know how many people would like to take advantage of this offer before committing resources to making the arrangements, and so that a suitable venue can be booked. Reply with the word WHANGAREI and the number attending. Do this today if you can, please.
If there are enough interested we will organise a bus again.
This case is of importance to every ratepayer in Kaipara, not just our membership, and it has implications for everyone who owns property, pays rates, or pays rates indirectly through rent, wherever they live in the country.
The Court will consider some fundamental questions that bear on our civil rights and the relationship between the bureaucracy and the people. I cannot guarantee the outcome, but I guarantee it will be among the most interesting two days you ever spend. Three of the most astute legal minds in our country will give their undivided attention to the arguments that you have made it possible to put before them. You deserve to be there and see it unfold.
I would like to record my appreciation to the Court for its willingness to assist people to attend this hearing.
Bruce Rogan, Chair MRRA.
Bruce Rogan can be emailed at firstname.lastname@example.org Please pass this message onto anyone you know who might be interested..
ANOTHER JUDICIAL REVIEW 28.07.15
The KDC and the NRC had little response to the Rogans' defence in the District Court that their rates invoices and rates assessment notices were legally non-compliant ant that the Rogans, therefore, had no legal obligation to pay the rates.
The two councils also struggled to justify the fact that that the NRC has failed to set its rates correctly, and unlawfully delegated the power to assess its rates to the KDC. If correct, which it appears to be, that makes the NRC rates completely invalid for those years.
The only argument that they could put forward was that regardless of such fundamental defects ratepayers were still obliged by section 60 of the LGRA to pay the rates unless they issued proceedings in the High Court.
Not being silly, following the case the Rogans, along with the MRRA, filed an application in the High Court for a judicial review of the KDC's and the NRC's rating decisions.
No reply has yet been received from either council but there will be some deep consultation with their legal advisers. The rating documents are riddled with legal errors and one has to wonder how the Commissioners themselves, with such broad experience in local government,and their top-notch legal advisers could make such a hash of things.
But no worries, Louise Upston still reckons the Commissioners are doing a great job . It's all a bit like Serco who were adjudged to be doing an exceptional job at Mt Eden.
OH MY GOODNESS, THIS IS ILLEGAL 28.07.2015
Those who witnessed Alison Puchaux of the KDC giving evidence on in the District Court may recall her being cross- examined on the series of letters between her and the Rogans about the “oldest debt first” policy which the KDC has included in its rates invoices and rates assessment notices for the last couple of years.
The policy was introduced as part of the computer programme adopted by most councils and to put pressure on ratepayers to pay the arrears as well as the current instalment. It is all part of Local Government New Zealand’s policy of gouging as much as it can out of ratepayers.
Let’s make no bones about it, it is thoroughly illegal because it denies ratepayers the fundamental right, protected by the Rating Act, to pay the current instalment only by due date without incurring a penalty. Arrears do not have to be paid and no penalty is incurred if they are not paid.
Earlier this year, Bruce Rogan, a first-class tennis player in his time, served up what he thought was an ace. He advised the KDC that it had no legal authority to apply such a policy.
Alison Puchaux, the KDC Revenue Officer who has been delegated the odious task of suing ratepayers, volleyed the ball back with the statement that embodied the combined legal expertise of Robertson, Winder and Booth. She stated that the oldest debts first policy was a policy of the KDC and that “our statutory authority comes from the Local Government Act 2002 and the Local Government (Rating) Act 2002”.
Not a bad return for a Council that makes an art form of ignoring just about every provision of those Acts.
The problem is that it is not a policy of the KDC and never has been. It is included in the rating documents without any legal authority. And, more than that, it cannot be a policy of the KDC because, rather than being authorised by that Act, it is directly contrary to the provisions of the Rating Act.
When Bruce Rogan replied with a volley to the corner, Alison Puchaux faltered and hit the ball into the net. She replied weakly that that “the policy was the common practice of in the local government sector and in other commercial organisations”. However, “in the circumstances” she advised that the KDC was prepared to accept the monies received in payment of the instalment.
In other words, the KDC backed down. No one could find out why the KDC backed down, what the “circumstances” were, or whether the suspension of the illegal policy was permanent.
In the District Court we found out what the true story was. In the witness box Alison Puchaux revealed that Honest John, besieged by the Rogans and many other ratepayers wanting a response to this issue, obtained a legal opinion and found out that, yet again, that he was waltzing in the wind of illegality. But instead of fronting it and admitting the error, yet again, he tried to bury it with local government double-speak and, true to form, left the offending policy in the subsequent rates invoices for the 2014/2015 rating year.
Even after the blatant illegality was exposed in the District Court in the Rogan case, including an acknowledgement from the KDC’s own solicitors that it was illegal, the policy is still included in the new rates assessment notice and rates invoice for the 2015/2016 year that have just been delivered. (It is under Arrears.)
So what goes? Is Honest John cocking a snook at the law and the courts? Does he think that with Louise Upston, Associate Minister, heading his Cheerleaders and endorsing his every move, that he is bullet-proof and beyond the law?
Whatever his motivation is, he is taking great risks as he steers the SS Kaipara into very murky waters. The inclusion of an illegal policy in the rates assessment notice and the rates invoice could render the documents invalid and the KDC would be forced to reissue them in compliance with the law.
ANOTHER ILLEGALITY BACKDOWN 28.07.15
Those who were at the Rogan hearing will also recall that Honest John backed down on the inclusion of legal fees for the recovery of rates arrears in rates invoices. This was another attempt to illegally gouge monies out of ratepayers.
There was a howl of objections from those billed and the KDC, after a quick referral to its solicitors reissued the invoices without the offending charges.
They were on very dangerous ground and no doubt their solicitors told them so. The Auckland City Case against Penny Bright failed in the District Court because that Council illegally tried to recover legal fees through its rates invoices.
PARLIAMENT RESCUES LOCAL GOVERNMENT AGAIN 22.07.2015
Many councils throughout New Zealand have stuffed up big time by not renewing bylaws that enabled the issue of speeding tickets. As a result many illegal tickets have been issued. To resolve the problem Parliament’s Chinese laundry worked overtime and in three hours went through all the stages of a validation bill and declared the illegal to be legal. Several thousand illegal speeding tickets were retrospectively validated. See the Stuff report and Herald reports.
The fault was discovered by the Kapiti Council and possibly affected up to 25 councils and possibly road controlling authorities, such as the NZ Transport Agency.
Yahoo News' Peter Wilson reports:
"This is to rectify a cock-up by this government and probably the last one as well," said NZ First's Denis O'Rourke.
"It's a case of just plain ineptitude - the old law didn't do what was required of it, people didn't follow the procedure under it, and now the government is trying to make new law out of bad old law."
Denis O'Rourke seems confident that this is tha last cock-up that Parilament will fix. If only. The Kaipara Validation Bill has turned out to be a testimony to legal incompetence with its shonky drafing. Likewise, the unlawful rating processes of Honest John and his team were highlighted in the recent Rogan District Court case and he will be begging his mates in Parliament to come to his rescue, yet again, with another Bill to gloss over his incompetence.
BASIL GETS THE BRUSH-OFF 03.07.2015
The decision of Local Government Minister Paula Bennett not to renew the tenure of Basil Morrison as a Local Government Commissioner (NZ Herald, Simon Hendery) has been warmly welcomed by many.
He was supposed to be the impartial chair of the LGC with the task of considering the views of ratepayers in respect of unitary authorities. However, with his imperious manner, he appeared to make no bones of the fact that he intended to impose unitary authorities on ratepayers whether they wanted them or not
As the article says:
In his role at the commission, he was criticised by some anti-amalgamation campaigners as an appointee of the pro-amalgamation National-led government, with a mandate to push through merger proposals.
This is how Rod Emmerson saw him in his heyday:
One of the most concerning things about John Key's regime is that impartiality and conflict of interest, the back-bones of a fair and just society, have largely been discarded. How was someone like Basil Morrison, who could not hide his glee at the prospect of imposing unitary authorities throughout the country, given a role that demanded impartiality?
It is on a par with the Auditor-General's "independent" inquiry into her own incompetence.
And how could John Key make that MP from somewhere north of Auckland, whose name we cannot mention, chair of the Parliamentary law and order select committee knowing the "family issues" that he was facing?
But, let's be thankful for small mercies. Basil has gone, and so has the spectre of a Northland Unitary Authority.
Who is next for the chopper?
Could it be someone in Dargaville who is spending ratepayers money on lawyers and legal actions like there is no tomorrow. Behind the silky words is a portfolio of underachievement and failure, and a local authority that he has led to the brink of financial ruin.
How long will it be before Paula Bennett tugs on his strings and moves him discreetly to his next junket.
KDC v ROGAN 03.07.2015
Honest John got his wish. He assembled his legal forces in Whangarei to deal a mortal blow to the rating rebels once and for all. He lined up his big guns. They fired, but all we saw was a puff of smoke.
For once it was a case of all smoke and no mirrors.
The two day battle in Whangarei was an interesting insight to justice in New Zealand. Heather and Bruce Rogan were on trial but the reality is that the rule of law was on trial and the justice system in New Zealand.
It did not start well with a packed court room of MRRA supporters and about 25 people excluded because of insufficient seating. An over-zealous security guard seemed to go out of his way to provoke trouble, but senior court staff intervened and with the consent of Judge de Ridder, allowed supporters to sit in the jury box. They had the best seats in the house.
Sadly, many others, who had come a long way and were involved in the stayed cases, were excluded.
I say that Heather and Bruce Rogan were on trial but if you read the Northern Advocate you would believe that in fact it was the Rogans (the nit-pickers) who had brought the action against the KDC.
The Northern Advocate's coverage of the hearing was quite unbelievable. Although their reporter sat in court for some time he got just about everything arse about kite.
We have been sadly let down by our local newspapers in the fight for justice in Kaipara. The incompetent reporting from the Advocate illustrates perfectly how local authorities can thumb their noses at legal compliance knowing that the fourth estate - the press - will never hold them to account.
This was a simple case of debt collecting. The Rogans had not paid their rates and the KDC were suing for the recovery of those rates.
However, as in all debt collecting cases, the KDC had to prove that the debt was due and payable. As this was not a contractual debt - an amount agreed by the parties - but a statutory debt arising our of charging a tax (rates) under the Rating Act, the KDC was obliged to prove that it had complied with statutory procedures.
Complying with the statutory procedures means delivering rates assessment notices and rates invoices that comply with the Rating Act.
When Parliament passed the Act it mandated that those documents must "clearly identity all" of a list of information, to satisfy one of the stipulated purposes of the Act, to help "ratepayers identify and understand their liability for rates".
Honest John and his crew clearly did not think that compliance was necessary because the rates assessment notices and the rates invoices issued by the KDC are riddled with incorrect information and much of the mandatory information is simply missing.
To use Honest John's own expression, both documents are a "dog's breakfast".
The KDC had no real answer to the non-compliance of its documents. It suggested that the Rogan's and other rate strikers were nit-pickers and that the information requirements, like the legal requirement to include the address of the NRC in the documents, were onerous and that the Rogan's could work them out for themselves.
The KDC's biggest gun was section 60 of the Rating Act which is both a draconian and unintelligible piece of legislation. It states that an "owner" must not refuse to pay rates on the grounds that the rates are invalid unless the person brings proceedings in the High Court.
The argument runs that even if the rates were patently invalid, the Rogans were not allowed to use the illegality as a defence because of section 60 ,and because they had not filed proceedings in the High Court. (The application for judicial review to the High Court, now before the Court of Appeal, does not count because that was filed by the MRRA and not the Rogans!)
The Rogans countered by stating that they were not attacking the validity of the rates themselves but the KDC's failure to comply with the statutory processes that created the liability to pay the rates. The Rating Act states quite clearly that the delivery of a rate invoice creates the liability to pay rates but it further stipulates that the rates invoice must include the statutory information. If the invoice is defective then there is no liability.
The KDC also tried to argue that the Validation Act validated just about everything. It did not. It only validated the specified rates, which are basically the EcoCare rates, and the intense scrutiny of the Rogan's legal team raised serious questions about whether the Validation Act actually validated anything.
In short, that argument by the KDC was a total fizzer.
The poor NRC came off worse. The NRC, to its credit, has played no part in the KDC's ruthless hounding of ratepayers but was, nevertheless, dragged into court.
The KDC sued the Rogans for arrears of rates but, quite astonishingly, failed to reveal to the court that some of those rates were NRC rates.
The Rogans put up the simple defence that the KDC had no legal power to sue on behalf of the NRC.
At first the KDC ignored this because they had believed that it did have the power to sue on behalf of the NRC. However, about 10 days prior to the trial it applied to the Court to have the NRC joined as a co-plaintiff.
In spite of the lateness and the prejudice to the Rogans, the Court, somewhat surprisingly, granted the application. The Rogans' legal team were therefore put under immense pressure to scrutinise the NRC rates.
It did not take long for the legal team to discover a rich seam of illegalities in the NRC rates. Not just procedural irregularities, but substantial failures to comply with the rating process that could render the NRC rates invalid.
The NRC counsel (the same as the KDC's) tried to gloss over the fundamental errors and argued, in any case, that section 60 applied and the Rogans could no plead the invalidity of the NRC rates without applying to the High Court.
Of course, the decision was reserved. Judge Keith de Ridder advised that, because of the complicated nature of the case, and the pressure of other work, it could be "some time" before the decision was released.
The issue to be decided is, fundamentally, whether the Rogans are allowed to plead the patent illegalities of the rating documents and establish that they are not liable for the rates, or whether section 60 means that, in the absence of an application to the High Court, a local authority can enforce payment of its rates even thought it does not comply with statutory requirements.
There was a real kerfuffle about the stayed cases in the week before the trial.
These are cases where ratepayers are being sued by the KDC and have adopted the same defence as the Rogans and which were transferred to the Whangarei Court.
Originally they were linked to the Rogan case but some time ago Judge de Ridder ordered that they were all "stayed", pending the outcome of the Rogan case. That means that they are held in abeyance until further notice.
Quite out of the blue, Honest John and his crew, in pursuit of their pound of flesh from all victims, not just the Rogans, applied to the Court at the last minute, despite the stayed order of the Judge, to enter judgment against all the stayed cases prior to commencement of the Rogan trial. They spent a small fortune in swearing and serving affidavits on all stayed defendants.
The application was, of course, in breach of the District Court Rules, and following pressure from legal counsel for the Rogans, and the solicitor for the stayed cases, an agreement was reached, and confirmed by the Court, that the stayed cases would remain stayed until the outcome of the Rogan case was decided.
AN ALTERNATIVE GETS THE BOOT 08.04.2015
Local architect Christian Simon is seriously opposed to the advisory panel's proposals because the panel and those unknown people who are driving the panel are asking the wrong questions. Christian believes that we need to reassess our sewerage needs and ask whether the current scheme is salvageable and whether stand-alone schemes are a better option.
Christian set up a stall at the advisory panel's open day, to present some true alternatives to ratepayers, but was asked by the panel to leave under threat of the police being called.
That pretty well confirms what many of us think about the panel
The details of Christian's proposals are available in some shops in Mangawhai Heads, Mangawhai Village and Kaiwaka..
His responses to the panel's questionnaire is available here.