Whakatane District Council v Bay of Plenty Regional Council

• Jurisdiction: New Zealand
• Judge: Baragwanath J
• Judgment Date: 03 August 2010
• Neutral Citation: [2010] NZCA 346
• Docket Number: CA258/2009
• Court: Court of Appeal
• Date: 03 August 2010

BETWEEN

Whakatane District Council

Appellant

and

Bay of Plenty Regional Council

Respondent

[2010] NZCA 346

Court:

William Young P, O'Regan and Baragwanath JJ

CA258/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction for fraud under the Crimes Act 1961 and failing to produce documents contrary to s45 Serious Fraud Office Act 1990 (offence to obstruct investigation) — charges arose from a serious of property sales where mortgage lenders were defrauded into lending 100% of the purchase price — appellant was alleged to have devised and supervised the scheme — whether the District Court Judge failed to make findings of fact on the essential elements (dishonesty and intent) of the crimes and had failed to indentify whether the appellant had been found guilty as the principal offender or as a party under s66 Crimes Act 1961 (parties to offences).

Counsel

D J Goddard QC and D J Neutze for Appellant

J G Miles QC and K J Caltran for Respondent

• A The appeal is allowed.

• B We declare that the respondent failed to comply with the requirements of the Local Government Act 2002.

• C The respondent must pay the appellant costs for a complex appeal on a band A basis and usual disbursements, including costs for two counsel and travel costs of junior counsel, in the Court of Appeal.

• D The respondent must pay the appellant costs on a 3C basis in the High Court.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Baragwanath J)

Table of Contents

	Para No
Context	[3]
The legislation	[7]
Hansard and the Select Committee's Report	[17]
The issues	[24]
The primary issue: was s 78 complied with	[27]
(1) The facts	[27]
(2) How the stages are to be defined	[50]
(3) Whether there was due consideration of relevant views and preferences	[67]
The absence of councillors from public consultation meetings	[80]
Remedy	[83]
Result	[85]
Costs	[86]

1 This appeal concerns a decision by the Bay of Plenty Regional Council (known by the acronym EBOP for “Environment Bay of Plenty”) to relocate its headquarters and a majority of its staff positions from Whakatane to Tauranga. Did it comply with the requirements of the Local Government Act 2002 (LGA), from which its powers derive and to which it is subject?

2 In the High Court Duffy J dismissed an application for review brought by the Whakatane District Council (WDC) against the decision. 1 We have concluded that the elaborate procedures imposed by the LGA required at the outset of the process greater consideration of community views and preferences than occurred and that WDC's appeal succeeds.

Context

3 The Bay of Plenty region is in the form of an inverted triangle, its northern boundary formed by the Bay which extends from Katikati to the northwest to Whangaparaoa, near Hicks Bay, to the northeast, with Whakatane lying on the coast

centrally between them. Its apex to the south is just east of Lake Taupo. The major city of Tauranga, which increasingly dominates the region, lies on the coast some 30 km east of Katikati; Whakatane is about 100 km east of Tauranga. The hinterland includes the city of Rotorua. There are as well a number of significant towns, including Te Puke south-east of Tauranga, Opotiki to the east of Whakatane, and Kawerau east of Rotorua as well as smaller settlements such as Murupara in the south. So those with potential interest in regional government will include residents of a range of localities

4 Under the LGA WDC is the territorial authority for the Whakatane district, with its principal offices located in Whakatane. EBOP is the regional council under the LGA; its region includes as well as the Whakatane district the districts of Opotiki, Kawerau, Western Bays and the cities of Tauranga and Rotorua.

5 The LGA entailed a major reform which for the first time conferred on regional and district councils full capacity to carry on or undertake any activity and, for that purpose, full rights, powers, and privileges. 2 But that broad capacity is limited by other provisions which require close analysis. 3

6 Among them is the requirement for a council to have a long-term council community plan (LTCCP) both to provide a long-term focus for its decisions and activities and to provide a basis for its accountability to the community. On 1 June 2007 EBOP resolved by nine votes to five to proceed with amendment to its LTCCP to relocate its head office from Whakatane to Tauranga on the basis that 100 positions be transferred. On 21 June 2007 EBOP resolved to adopt the proposed amendments. WDC's application for review to challenge both the resolutions was filed promptly. No point is taken concerning the time that has since elapsed.

The legislation

7 Part 2 of the LGA is headed:

Purpose of local government, and role and powers of local authorities

8 The first purpose of local government is to enable democratic local decision-making and action by and on behalf of communities. 4 A major question on this appeal is how far that democratic process must go. Its other purpose is to promote the social, economic, environmental and cultural well-being of communities in the present and for the future. 5

9 Principles relating to the performance by a local authority of its role are stated in s 14. It should, inter alia, make itself aware of and have regard to the views of all of its communities. 6 That principle is supported by the more specific provisions next mentioned.

10 Amendment of an LTCCP requires use of a special consultative procedure. 7 That requirement falls within Part 6 of the LGA “Planning, decision-making and accountability” which begins with s 75:

Outline of Part

This Part-

• (a) sets out obligations of local authorities in relation to the making of decisions:

• …

• (c) states the obligations of local authorities in relation to consultation with interested and affected persons:

• (d) sets out the nature and use of the special consultative procedure:

• …

11 There follows Subpart 1 – Planning and decision-making. It begins with s 76, subs (1) of which requires that “every decision made by a local authority must be made in accordance with such of the provisions of [of present relevance] ss 77, 78 and 82 as are applicable”. Subs (2) states that subs (1) is subject, in relation to compliance with ss 77 and 78, to the judgments made by the local authority under s 79. 8 Subsection (3) states:

A local authority-

• (a) must ensure that, subject to subsection (2), its decision-making processes promote compliance with subsection (1); and

• (b) in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.

Self-evidently the decision to shift the head office and many personnel from Whakatane to Tauranga is significant. So in terms of s 76(3)(b), ss 77, 78 and 82 must be complied with.

12 Section 77 states the council's obligations to seek to identify and to assess options:

77 Requirements in relation to decisions

• (1) A local authority must, in the course of the decision-making process,—

  • (a) seek to identify all reasonably practicable options for the achievement of the objective of a decision; and

  • (b) assess those options by considering-

    • (i) the benefits and costs of each option in terms of the present and future social, economic, environmental, and cultural well-being of the district or region; and

    • (ii) the extent to which community outcomes would be promoted or achieved in an integrated and efficient manner by each option; and

    • (iii) the impact of each option on the local authority's capacity to meet present and future needs in relation to any statutory responsibility of the local authority; and

    • (iv) any other matters that, in the opinion of the local authority, are relevant;

    • …

• (2) This section is subject to section 79. (Emphasis added.)

Identification of options is stage 2 of s 78, to which we come next. Assessment of options is stage 3 of s 78.

13 The primary issue argued is whether EBOP complied with the first and second of four statutory obligations to ascertain community views — those in s 78(2)(a) and (b). Section 78 states:

78 Community views in relation to decisions

• (1) A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.

• (2) That consideration must be given at-

  • (a) the stage at which the problems and objectives related to the matter are defined:

  • (b) the stage at which the options that may be reasonably practicable options of achieving an objective are identified:

  • (c) the stage at which reasonably practicable options are assessed and proposals developed:

  • (d) the stage at which proposals of the kind described in paragraph

  • (c) are adopted.

• (3) A local authority is not required by this section alone to undertake any consultation process or procedure.

• (4) This section is subject to section 79.

• (Emphasis added.)

14 Councils make decisions affecting many topics of a wide range of importance. So s 79 confers a discretionary power to approach in a manner proportionate to the occasion the options of s 77 and the consideration of community views under s 78. But it does not operate as a dispensing provision. It states:

79 Compliance with procedures in relation to decisions

• (1) It is the responsibility of a local authority to make, in its discretion, judgments-

  • (a) about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision; and

  • (b) about, in particular,—

    • (i) the extent to which different options are to be identified and assessed; and

    • (ii) the degree to which benefits and costs are to be...