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

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

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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Minor Law Changes Not To Be Overlooked

The Statutes Amendment Bill (No 4) brings with it important changes to a range of legislation affecting local government.

Omnibus Bills such as the above, which was passed on 24 March 2015, are often overlooked but can introduce significant changes to the law. This Bill amends a number of Acts that come within the every day operating sphere of local government. We have identified those of most relevance.

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