Media Release - December 2012
Mangawhai Residents and Ratepayers Association
Barrister’s Legal Opinion: “Kaipara Rates Resolutions Invalid”
A legal opinion prepared for ratepayers group Mangawhai Residents and Ratepayers Association (MRRA) by Quay Chambers Barrister Kitt Littlejohn identifies several breaches of the Local Government Act (LGA) by Kaipara District Council (KDC).
The legal opinion raises important questions about the lawfulness of processes and decisions made by Council when setting the KDC Long Term Plan and Rates for 2012-2013. A key issue is that KDC made significant changes to the draft Long Term Plan (LTP) and did not consult the community – as it is required to – about major changes.
The legal opinion states:
64. ……Kaipara District Council adopted a completely different (and previously un-signalled) financial strategy to deal with its significant debt levels at the 11th hour in an attempt to quell widespread criticism of the lack of information, poor financial management and scale of proposed rates increase, and in doing so, increased the total cost of the debt to the district and its ratepayers for much longer.
“This opinion adds to our understanding of what the law says about how our Council has behaved and makes us more determined to fix it,” says Bruce Rogan, Chair of MRRA, which is leading a Kaipara District campaign to address issues arising from the controversial Mangawhai EcoCare Sewage scheme.
The legal opinion explains:
53. ….I am satisfied that there are significant provisions in the adopted LTP that go beyond the scope of the draft LTP and were not reasonably or fairly raised by any submission on the LTP. In my opinion, the KDC had no power to adopt these revised provisions without first proceeding through the special consultative procedure. Its decision to adopt the LTP without following that procedure is therefore in breach of the LGA. If that decision is invalid then the LTP is defective and the rates resolutions made in reliance on that document are invalid.
Two weeks ago Kaipara ratepayers received a letter with their rates demand from John Robertson, Chair of the government appointed commissioners. This letter states: “The rates were set before we took over. We had no influence over the 2012/2013 rates but we are absolutely clear that the rates must be paid.”
The letter from Robertson also states, “73% of Kaipara ratepayers have paid their rates in full and on time. A further 19% have made part-payments… 8.5% have not paid anything.”
More than one thousand ratepayers have joined the rates strike.
Rogan responds, “It is totally unfair that commissioners are putting pressure on ratepayers like this at Christmas. They say they had no say over the rates but send threatening letters without justifying the legality of those rate demands.”
The legal opinion goes on:
77. Ultimately, it is not for the ratepayers to prove that they are entitled to with-hold payment; it is for the KDC to establish that the rates are valid and were validly set.
Rogan says, “we believe commissioners owe it to themselves and to the community to prove the rates bills are legal. So far all we get is silence on that front. We don’t want to spend any more money than is necessary, but we are not sitting on our hands. We may be forced to take this matter to the High Court.”
The legal opinion states:
59. To advance and “prove” the complaints against the KDC’s compliance with the LGA, the appropriate course of action is to apply for judicial review under the Judicature Amendment Act 1971 of the KDC’s decisions to notify the LTP prior to adopting an annual report, to adopt the LTP out of time and in breach of its decision making powers, and to set the 2012/2013 rates for the district on the basis of that LTP.
PS: Since this opinion was obtained, MRRA has obtained via the OIA various documents from Kaipara District Council which indicate that KDC has spent some $36,000 with law firm Simpson Grierson on advice relating to the rates. The documents reveal the close involvement of Dept of Internal Affairs officials at key advisory meetings attended by Commissioners, KDC's CEO, and Simpson Grierson lawyers.
The Government is keeping very close tabs on what is happening at Mangawhai. Unsurprising really. The Long Term Plan for 2012-2013 might have been signed off by the departing Councillors, but it has all the hallmarks of being designed in Wellington by Government officials.