Environmental / Resource Management

Clarification of the Authority for setting Speed Limit Bylaws

Created: Tuesday, 28 July 2015 03:01

Government recently passed emergency legislation to rectify a technical legal issue relating to speed limit bylaws. The Land Transport (Speed Limits Validation and Other Matters) Act 2015 (“The Act”) clarifies the power of local authorities and other road controlling authorities (such as the NZ Transport Agency) to set speed limits, and retrospectively ensures speed tickets issued since 2004 are enforceable.

The issue

Validity of speed limits set by around 25 local authorities since 2004 had been put in doubt. The issues were a result of increasing complexity in local government legislation and the Land Transport Act:

  • Any speed limit bylaw created under section 145 of the Local Government Act 2002 was required to be reviewed within five years. If no review took place the bylaw was deemed revoked after seven years;
  • Speed limit bylaws claiming to have been made under section 684 of the Local Government Act 1974 or section 22AB of the Land Transport Act 1998 may not have had the appropriate authority; and
  • Speed limits that were not validated according to section 10.1(7) of the Speed Limit Rule 2003 were deemed invalid.

If left uncorrected, speed limits in the districts and cities of local authorities affected may have been found to be unenforceable, if tested before a court.

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"It's a Lawyer Jim, But Not As We Know It" - Limitations on claiming Legal Privilege for advice from in-house Counsel

Created: Tuesday, 07 July 2015 02:01

"It's a Lawyer Jim, But Not As We Know It" – Limitations On Claiming Legal Privilege For Advice From In-House Counsel

A recent decision by the Ombudsman on the release of information under the Official Information Act 1982 (OIA) is a timely reminder of the limitations on claiming legal privilege for advice from in-house counsel.

In the decision (reference 334056, May 2015), the Ombudsman concluded that advice provided to the Minister from a practising lawyer employed as a public servant was not legally privileged because it could not be demonstrated affirmatively that the public servant was acting in a legal capacity.

The context may be familiar. The Campaign Against Foreign Control of Aotearoa complained to the Ombudsman about the Overseas Investment Office’s (OIO) decision to refuse a request for information relating to Kim Dotcom’s applications for consent to invest in New Zealand. The OIO sought to withhold two memoranda to Ministers, setting out the OIO’s advice on the applications, to maintain professional legal privilege (section 9(2)(h) of the OIA).

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Assessing Native Bush Lots

Created: Monday, 08 June 2015 20:37

D & K Eastgate v Auckland Council [2015] NZEnvC 038

The use of native bush lots to justify rural subdivisions is often contentious, and this case was no exception.

This decision concerns an appeal of the decision of Auckland Council to refuse consent for a subdivision proposal of a property on rural zoned land in Clevedon.  The Auckland Council District Plan – Operative Manukau Section (the District Plan) provides for subdivision of rural land in limited circumstances, including provision for "native bush lots" as a controlled activity where, among other qualifying factors:

(a)       the site to be subdivided must be 10 hectares or more in area and held in one Certificate of Title on 5 June 1989; and

(b)       the native bush lot must contain at least 90% coverage of "native bush" as defined in the District Plan.  

Neither of these standards were met and therefore the proposal was assessed as a non-complying activity.  The application purported to distinguish itself as an exception through the proposed covenanting of an area of native bush and wetland within one of the lots.

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Building Act Emergency Management Proposals – The Safety vs Heritage Debate

Created: Wednesday, 27 May 2015 00:54

On 19 May 2015 the Minister of Building and Housing (Minister), Nick Smith, announced consultation on a proposed new system under the Building Act 2004 to manage buildings following a disaster.

The proposals seek to manage unsafe buildings and life safety risks during and after a state of emergency by providing territorial authorities with new powers under the Building Act 2004 to require or undertake work on damaged buildings without resource or building consents. This is intended to smooth the transition between state of emergency powers under the Civil Defence Emergency Management Act 2002 (CDEM Act), and powers under the Building Act, where buildings have suffered significant damage and pose significant risk.

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"...NO ONE WAS KILLED IN CHRISTCHURCH FROM A BUILDING THAT MET THIS LEVEL"

Created: Thursday, 14 May 2015 13:11

This comment from Building & Housing Minister, Nick Smith, in a speech announcing the Government's revised earthquakestrengthening policy, referring to the 34% code compliance standard for earthquake prone buildings: Minister's speech.

The Building (Earthquake-prone Buildings) Amendment Bill, which is due to be reported back to the House on 30 July 2015, caused a flurry of concern from insurers and building owners when it was introduced at the end of 2013. The Bill proposed seismic assessments of all buildings within 5 years, and required work resulting from the assessment to be completed within15 years, with an extension of 10 years available for some heritage buildings – see our commentary on Bill here.

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Proposed Environmental Legislation not Limited to RMA

Created: Friday, 10 April 2015 02:07

While the fate of RMA reform hangs in the balance following the Northland by-election, other environmental legislative proposals are worth keeping an eye on.

Environmental Reporting Bill Makes Progress

In March 2014 we discussed the introduction of the Environmental Reporting Bill. As this Bill has now been reported back to the House of Representatives by the Local Government and Environment Select Committee it is a good time to recap on what it seeks to achieve, and what changes the Select Committee have proposed.

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