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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Assessing Native Bush Lots

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

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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