Northern Action Group Incorporated v The Local Government Commission
| Jurisdiction | New Zealand |
| Judge | Collins J |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] NZHC 805 |
| Docket Number | CIV-2014-485-009890 |
| Court | High Court |
| Date | 23 April 2015 |
Under Schedule 5, clause 2(1) of the Local Government Act 2002 (“Act”)
In the Matter of an appeal against a decision of the Local Government Commission made under clause 6(1) of Schedule 3 of the Act to decline the reorganisation application
[2015] NZHC 805
CIV-2014-485-009890
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
Appeal against the refusal of the Local Government Commission (the Commission) to assess a reorganisation application to remove “North Rodney” from the Auckland Council “moratorium had been imposed on assessments until after the 2013 triennial elections — applicants applied after the election — the Commission declined to consider the application because: (1) there was insufficient clarity about the boundaries of the proposed North Rodney Council; (2) the applicants had not demonstrated community support for the application proposal in the district of the Auckland Council; and (3) it was not in the public interest for the application to be considered at that time — whether the decision to decline to assess had in effect imposed an new moratorium or extended the previous moratorium — whether applications for reorganisation of local government should be accepted for assessment unless there were exceptional circumstances — whether in determining the affected area it was necessary to show support from every community within an affected district or just from those in the North Rodney area.
N M Pender and P E McMillan for Appellant
K L Clark QC and T J Power for Respondent
JUDGMENT OF Collins J
On 30 June 2014 the Local Government Commission (the Commission) declined to assess a reorganisation application brought by the Northern Action Group Incorporated (the Action Group) to remove “North Rodney” from the Auckland Council (the Application). The Action Group wanted the Commission to accept that North Rodney should become a separate council.
After the Commission declined to assess the Application, the Action Group filed an appeal in the High Court alleging the Commission made four broad legal errors in its decision.
In this judgment I explain why:
The fourth ground of appeal which alleges bias was not pursued in the hearing conducted before me.
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(1) I am allowing the Action Group's appeal and directing the Commission to reconsider its decision because I am satisfied the Commission made a material error of law when it decided it was not in the public interest to assess the Application.
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(2) I have not found it necessary to decide if the Commission erred when it declined the Application because it did not adequately identify the geographical boundaries of the proposed North Rodney Council.
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(3) I have concluded the Commission correctly decided the Action Group had not demonstrated it had community support in the “district of the affected territorial authority” for the Application.
As the Commission will need to take time to reconsider its decision, the Action Group should be afforded the opportunity to address any lingering concerns about the adequacy of the description of the boundaries of the proposed North Rodney Council and demonstrate community support for the Application within the district of the Auckland Council beyond the boundaries of the proposed North Rodney Council.
Before analysing the reasons for my decision, I shall explain:
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(1) the context to the appeal;
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(2) the key relevant legislative provisions;
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(3) the Application submitted to the Commission;
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(4) the Commission's decision; and
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(5) the grounds of appeal.
In March 2009 a Royal Commission on Auckland Governance (the Royal Commission) 1 recommended the merging of eight councils and the creation of a single Auckland Council. The Rodney District Council was one of the local bodies that the Royal Commission recommended be incorporated into the new Auckland Council.
The recommendations of the Royal Commission formed the basis of the Local Government (Auckland Council) Bill, which was introduced into Parliament on 13 May 2009. That Bill was referred to the Auckland Governance Legislative Committee (the Committee), which recommended the existing Rodney District Council be split into a “South Rodney” area and a “North Rodney” area, with only the former being incorporated into the Auckland Council. The Committee recommended that the North Rodney area be incorporated into the Kaipara District Council.
During the second reading of the Bill the Local Government Minister lodged a Supplementary Order Paper to reinstate North Rodney into the proposed Auckland Council. That proposal was ultimately accepted by Parliament when the statutes creating the Auckland Council were passed in June 2010.
On 10 December 2009 the Local Government (Auckland Law Reform) Bill was introduced into Parliament. That Bill proposed a moratorium on any further reorganisation of the proposed Auckland Council until after October 2013.
The Auckland Law Reform Bill was divided into three Acts, all of which received the Royal Assent on 14 June 2010. For these introductory purposes the most significant section that was enacted was s 9 of the Local Government (Auckland Transitional Provisions) Act 2010 which provides:
9 Prohibition on reorganisation proposals affecting Auckland until after October 2013 triennial general elections
(1) No person (including the Minister or the Auckland Council) may make a reorganisation proposal or reorganisation application affecting Auckland for any matter specified in section 24(1) of the Local Government Act 2002 or section 13A of the Local Government (Auckland Council) Act 2009 until after the completion of the 2013 triennial general elections.
(2) Subsection (1) applies despite subpart 2 of Part 3 and Schedule 3 of the Local Government Act 2002.
(the moratorium).
The Action Group was formed in response to the inclusion of North Rodney in the Auckland Council. The Action Group comprises people who live in North Rodney, a predominantly rural region, and who ardently believe North Rodney has little in common with most of those who live within the district of the Auckland Council's boundaries.
The Action Group waited for the expiration of the moratorium and on 4 November 2013 filed the Application with the Commission.
Over the ensuing seven months the Commission met with representatives of the Action Group and the Auckland Council, and received advice from its Chief Executive Officer (the Chief Executive).
On 30 June 2014 the Commission explained its reasons for not assessing the Application in a 36 paragraph decision. In summary, the Commission declined to consider the Application for three reasons:
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(1) there was insufficient clarity about the boundaries of the proposed North Rodney Council;
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(2) the applicants had not demonstrated community support within the district of the affected territorial authority for the Application outside of the proposed North Rodney Council area; and
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(3) it was not in the public interest for the Application to be considered.
The Commission was created by s 3 of the now repealed Local Government Act 1974. It continues to be a statutory body by reason of s 28 of the Local Government Act 2002 (the Act). The Commission's broad powers include the promotion of good practice in relation to local government. 2
Section 24AA of the Act was enacted as part of a suite of changes made to the Act in 2012 relating to reorganisation of local government in New Zealand. The responsible Minister explained to Parliament the reasons for the 2012 amendments to the Act. He said: 3
The fourth area of reform in the bill is the streamlining of local government reorganisation procedures for the union, abolition, and constitution of districts and regions, and the creation of unitary authorities. Currently, such reorganisations can proceed only if they are supported by more than 50 per cent of the votes cast in each affected district or region, and reorganisation involves a long and complex process. This bill will make it easier for communities and local authorities to apply for a local government reorganisation, and it will give the Local Government Commission more flexibility in considering applications. Reorganisation applications will need significant community support before the commission can progress them.
Section 24AA of the Act explains the purposes of the local government reorganisation provisions of the Act in the following way:
24AA Purpose of local government reorganisation
The purpose of the local government reorganisation provisions of this Act is to improve the effectiveness and efficiency of local government by-
(a) providing communities with the opportunity to initiate, and participate in considering, alternative local government arrangements for their area; and
(b) requiring the Commission, in consultation with communities, to identify, develop, and implement in a timely manner the option that best promotes good local government.
The objectives of local government reorganisation compliment the broader purposes of local government found in s 10(1) of the Act which provides:
10 Purpose of local government
(1) The purpose of local government is-
(a) to enable democratic local decision-making and action by, and on behalf of, communities; and
(b) to meet the current and future needs of communities for good-quality local infrastructure, local public services, and performance of regulatory functions in a way that is most cost-effective for households and businesses.
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Schedule 3 to the Act (the Schedule) was amended as part of the changes made in 2012. The Schedule applies to local government reorganisation. 4
The Schedule provides that any person, body or...
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