Unpicking the Unholy Relationship between Local Authorities and their CCOs

Few relationships in local government come under more stress.  The Controller and Auditor-General has produced a report offering practical guidance on how the principles of good governance apply to setting up, operating and monitoring of council-controlled organisations (CCOs).

Refer to Governance and accountability of council-controlled organisation September 2015.

What is in the report?

Drawing on earlier reports in 1994 and 2001 dealing with public entities and their subsidiaries, and on interviews and case studies of eight of the larger urban local authorities, the Auditor-General has provided updated observations and advice for all local authorities.  The report should also be compulsory reading for those public and media commentators who persistently blur the line between councils and their CCOs.

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The Trans-Pacific Partnership and the Environment

The Trans-Pacific Partnership (TPP) has had a fair degree of media coverage, both during its seven year negotiation, and since negotiations concluded on October 8 2015. Less has been heard however, on the Environment Chapter of the TPP, and what it might mean (if anything) for New Zealand and our environmental regulations.

What is the TPP?

TPP is a free trade agreement that will liberalise trade and investment between 12 Pacific-rim countries: New Zealand, Australia, Brunei Darassalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, the United States and Vietnam.

The rationale for an Environment Chapter in any trade agreement is to break down trade barriers that exist under the guise of environmental regulations; to promote higher standards of environmental protection globally; and to reduce trade advantages that one country may have over another because of lower environmental standards.

So, for a country like New Zealand with relatively high standards of environmental regulation, and with a highly trade exposed economy, environmental provisions in a trade agreement are welcomed.

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Environmental Reporting Act Passes

Environment and Statistics Ministers have jointly announced the passing of the Environmental Reporting Act 2015 (the Act).

The Act provides legislative authority for the Ministry for the Environment and Statistics New Zealand to report accurate and objective updates on the state of New Zealand’s environment.  Reports will be released biannually on one of the five domains of air, freshwater, land, marine and atmosphere / climate.  A synthesis report will be released once every three years.

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"LOCAL AUTHORITIES ARE ATTRACTIVE DEFENDANTS"

"LOCAL AUTHORITIES ARE ATTRACTIVE DEFENDANTS"

In Monticello Holdings Ltd v Selwyn District Council the High Court took a good look at negligence in the local authority context, and found in favour of the Council. 

Gendall J has produced one of those wonderfully useful judgements that sum up the law on all of the matters in dispute, including in this case local authority liability in negligence, the production of LIMs and PIMs, and the production of information generally.

The case

Monticellois a land development company, which found part of the land it had purchased for residential development was contaminated by hazardous substances arising from a disused town dump that had been operated by one of the predecessors of the current Council.   Historical information about the disused dump was available in Council archives, but unknown to officers who processed the application for resource consent, or those responsible for the issue of PIMs and LIMs.

Since resource consent to subdivide the land was subject to a condition that should contaminants be found the land had to be rehabilitated, this discovery during earthworks meant that the company incurred considerable additional development costs.  Consequently it brought proceedings alleging the Council owed it a duty of care to keep and maintain accurate and reliable records about the existence of contaminated sites, to disclose that information to it, and that under the circumstances it ought to have refused to grant resource consent to develop the land.

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Clarification of the Authority for setting Speed Limit Bylaws

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

"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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