What timely legal advice could have avoided
Thursday 20 June, 2019
The benefit of timely (and early) legal advice on council notification decisions in contentious resource consent applications has been highlighted in the recent High Court decision in Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council & Resin and Wax Ltd [2019] NZHC 449 [15 March 2019] (Resin & Wax Decision).
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
Consultation obligations for Outsourcing contracts
Thursday 20 June, 2019
We have been involved in several recent instances in which a local authority planned to outsource its water and/or wastewater operations. Local authorities are prohibited from selling their relevant assets unless it is to another local authority or CCO, so these arrangements typically take the form of long term operations contracts.
Quarry covenants affecting Synlait's new Pokeno dairy factory
Thursday 20 June, 2019
The Court of Appeal has recently delivered a decision on land covenants restricting land use, which affects the land Synlait has constructed its new $250 million Pokeno dairy plant on. The Court of Appeal has ruled that the land covenants be reinstated, meaning the plant has been constructed in breach of covenants restricting the use of the land in...
Availability Provisions Clarified
Thursday 20 June, 2019
A recent decision of the Employment Court has clarified the reach of availability provisions. This decision has an impact for all employers who require their employees to be available to work overtime. The case of Postal Workers Union of Aotearoa Inc v New Zealand Post Limited [2019] NZEmpC 47, considered the question of whether a clause in the e...
Employment Law Changes
Friday 31 May, 2019
The introduction of the Labour government has seen a recent shake up to employment legislation. Many of the changes are a restoration of standards and protections for employees as well as being intended to promote and strengthen collective bargaining and union rights in the workplace.
The changes came in two waves, with the second set of chang...
Court sends warning on poorly drafted consent conditions
Tuesday 9 April, 2019
The Environment Court recently issued strong warnings that poorly framed conditions could impact the Court’s decision-making. Those warnings went unanswered by the Applicant which resulted in the release of an interim decision only.
Court of Appeal guidance on obligation to pay rates
Tuesday 9 April, 2019
The Rogans were unhappy about having to pay substantially increased rates because of a major cost overruns in the construction of a wastewater treatment plant in Kaipara District. At the time, they refused to pay rates. Later, they offered to pay the outstanding rates but not penalties. They said that the rates assessments and invoices did not c...
High Court strikes out a judicial review for trade competition
Tuesday 9 April, 2019
Sheffield Properties Ltd (“Sheffield”), with interests within the Paraparaumu Town Centre, sought judicial review of the decision by Kapiti Coast District Council (“the Council”) to approve Private Plan Change 84 - Airport Zone (“PC84”).
Council's statutory demand upheld
Tuesday 9 April, 2019
The High Court has declined to set aside a council’s statutory demand for a $415,493.45 debt for development contribution levy. The case is reassuring for local authorities.
Government establishes new Infrastructure Commission
Tuesday 9 April, 2019
The Minister for Infrastructure, Shane Jones, has announced the establishment of a new independent infrastructure body, the New Zealand Infrastructure Commission, ‘Te Waihanga’.
Bella Vista: MBIE Report highlights failure to perform statutory functions
Tuesday 9 April, 2019
MBIE has released a report of its review of Tauranga City Council’s (“Council”) performance of its functions under the Building Act 2004 with respect to the Bella Vista development. It concludes that there were a number of reasons for the Council’s failure to perform its regulatory functions.
Privacy Bill: Select Committee Report
Thursday 4 April, 2019
Almost a year after the Privacy Bill was first introduced, the Select Committee has provided its much awaited report. The Select Committee has made some significant changes to the Bill, including additional changes to the Privacy Principles and clarifications around the transfer of personal information offshore.
Can a trustee use trust funds for litigation costs?
Friday 22 March, 2019
Trustees are generally entitled to reimbursement for costs properly incurred in the administration of a trust. There are however limitations to that principle, particularly in respect of litigation costs. This issue was addressed in the recent Court of Appeal decision of Pratley v Courtney (2018) CA40/2018 NZCA 436, which concerned an appeal agains...
Case highlights risk of assuming a director has authority to contract
Friday 22 March, 2019
It is common practice for a director to sign documents on behalf of the company. A recent case serves as a reminder that it cannot be assumed, unless the company only has one director, that a contract signed by a single director is enforceable against the company.
A glimpse into the Personal Property Securities Register
Friday 22 March, 2019
The use of credit is an essential part of commercial transactions and is made easier by, and usually dependent on, the debtor’s ability to provide security for the credit. Security interests over personal property (for example, plant and equipment, trucks, trailers and tractors, stock in trade, accounts receivable and the like) are granted on a dai...
Land Transfer Act 2017
Wednesday 28 November, 2018
The Land Transfer Act 2017 came into force on 12 November 2018. It is a significant rewrite of important Property Law legislation – but what impact does it have on local authorities? There is a lot of new terminology. The Act introduces the concept of a Record of Title which replaces what was previously referred to as a Certificate of Title or, s...
Recent decision on "affected persons" highlights the importance of context
Wednesday 28 November, 2018
In Ennor v Auckland Council [2018] NZHC 2598, Whata J adopted the threshold test for an “affected person” under s 95E of the Resource Management Act 1991 (“RMA”) and addressed the importance of context in notification decisions. The Court considered an application for judicial review of the Council’s decision to grant a neighbours’ resource consen...
The Government's Three Waters Review
Wednesday 28 November, 2018
The ripple effects of the Havelock North water crisis continue to make themselves felt. The government’s three waters review has resulted in a November 2018 cabinet paper that lays out the regulatory pathway that the government will pursue. Over the 2019 year this comprises detailed policy proposals for...
Chief Ombudsman upholds Auckland Council's restrictions on stadium reports
Wednesday 28 November, 2018
Two Auckland councillors complained to the Ombudsman about lack of access to two “pre-feasibility” reports on the proposed national stadium in Auckland. Councillors were provided unredacted copies on the basis that the reports were not copied, that they were kept in a secure location, and that they were returned to the mayor’s office once the coun...
Email quarantine: getting it right
Wednesday 28 November, 2018
Councils, like other employers, have obligations to protect their employees from harm. Quarantining abusive or offensive emails is one method of doing so. However, Councils must tread carefully.
Deemed Directors and nervous employees
Friday 12 October, 2018
The law requires the business and affairs of a company to be managed by, or under the direction or supervision of, the board of directors (“Board”). The Board can delegate some of those management powers to employees, but where employees exercise management powers (whether properly delegated or not) there is a risk that they may be personally expo...
Are you dating or in a de facto relationship?
Tuesday 2 October, 2018
One issue that commonly arises is whether a couple are in a de facto relationship. The reason why this is so important, is that the equal sharing rules of relationship property law apply to de facto relationships of 3 years or more. It also applies to de facto relationships under 3 years, where there is a child and other factors are met.
Court of Appeal Decision in R J Davidson Family Trust
Thursday 27 September, 2018
The much-anticipated Court of Appeal decision on an appeal from the High Court on the question of whether a consent authority can, or should, have recourse to Part 2 of the Resource Management Act 1991 (“RMA”), when considering resource consent applications under section 104 of the RMA.
High Court finds Council liable in negligence for damage from fallen tree
Thursday 27 September, 2018
The High Court has held that the Queenstown Lakes District Council (“Council”) breached its duty of care to Plaza Investments Ltd (“Plaza”) by failing to prevent a rotting 30-metre-tall Lombardy poplar tree in a Council-owned park from falling onto Plaza’s motel. Council was found liable for the amount required to repair Plaza’s property.
Court confirms penalty bands under the Health and Safety at Work Act
Thursday 27 September, 2018
When the Health and Safety at Work Act (HSWA) came into force in 2016, the penalties for offences were increased six-fold. We have been waiting for some time for guidance from the High Court as to the sentencing approach and culpability bands under the new legislation to understand just how much bigger the penalties imposed on Persons Conducting a...
Court of Appeal recognises new public interest defence to defamation claims
Thursday 27 September, 2018
In our ‘Defamation Update’ on 15 September 2017, we discussed the High Court decision in Durie v Gardiner [2017] NZHC 377, [2017] 3 NZLR 72 which recognised that a new defence for “responsible communication on matters of public interest” could apply in New Zealand.
The Court of Appeal has now issued its decision (Durie v Gardiner [2018] NZCA 2...
Environment Court's Annual Review 2017
Thursday 27 September, 2018
The Environment Court has just released its fourth Annual Review, covering the Court's activities in the 2017 calendar year. This article provides a snapshot of the Annual Review.
The role of Councils in the 'foreign buyer ban'
Thursday 27 September, 2018
Councils should ensure that a property’s “property category” is included in the searchable property information available on their websites.
Court upholds sensible approach to local authority works on private property
Tuesday 24 July, 2018
Local authorities have a power to construct works on private property under s 181 of the Local Government Act 2002 with the consent of the owner or after following the process in Schedule 12. The High Court recently ruled that local authorities must only give notice and follow the process under s 181 and Schedule 12 once; the process need not re-s...
New process for calculating court-awarded interest
Tuesday 24 July, 2018
A new process for calculating Court-awarded interest on debt and compensation claims came into force on 1 January 2018 that more fairly compensates creditors and has potential application to Public Works Act acquisitions.
New RMA Compliance Oversight Unit and best practice guidelines
Tuesday 24 July, 2018
A new unit is to be established to oversee compliance with the Resource Management Act 1991 (‘RMA’).
Should Councillors see Council reports?
Tuesday 24 July, 2018
The answer will almost always be “yes”, but Auckland Mayor Phil Goff has had reservations. The report in question cost Auckland Council almost $1 million and relates to the proposed national stadium, which could cost $1.5 billion.
Supreme Court upholds councils' power to fluoridate water
Tuesday 24 July, 2018
On 27 June 2018 the Supreme Court issued a judgment which is of significance to councils across the country.
In 2012 South Taranaki District Council decided to fluoridate the drinking water supply for Patea and Waverley. Both towns had high levels of dental decay. Anti-fluoride group New Health New Zealand Inc brought unsuccessful claims in the H...
Bella Vista learnings
Tuesday 24 July, 2018
The Hon Paul Heath QC’s review of Tauranga City Council’s (TCC) assessments, decisions and monitoring of the land use, subdivision and building consents for 21 properties in the Bella Vista subdivision is essential reading for any council officer working with the Resource Management Act 1991 (RMA) and the Building Act 2004 (BA).
New Local Government Bills
Thursday 3 May, 2018
The Local Government (Community Wellbeings) Amendment Bill has passed its first reading and has been referred to select committee.
Environment report highlights serious land issues
Thursday 3 May, 2018
A new comprehensive report on the state of land in New Zealand has been published by the Ministry for the Environment and Statistics NZ. Our Land 2018 is the first land specific report produced under the Environmental Reporting Act 2015.
New guidance on publicly available official information
Thursday 3 May, 2018
The Ombudsman has recently released a useful guide relating to the power not to provide official information that is or soon will be publicly available.
High Court guidance on HASHAA
Thursday 3 May, 2018
A very recent High Court decision on the Housing Accords and Special Housing Areas Act 2013 (HASHAA) provides valuable guidance to councils with established special housing areas (SHAs) or in the midst of discussions with the Minister to establish SHAs.
Bright-line test extended to 5 years
Wednesday 4 April, 2018
As signalled by the Government during the 2017 election and again in February 2018, the bright-line test for tax on the disposal of residential land has now been extended to 5 years.
Caselaw Update
Friday 9 March, 2018
Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council [2017] NZSC 190
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
The issue was considered in the recent Environment Court case David Mulholland Consulting Engineer Ltd v Whanganui District Council [2018] NZEnvC 10.
Briefing to the Incoming Minister for the Environment
Friday 9 March, 2018
MfE prepared two BIMs, one on the environment portfolio generally and one specifically relevant to water issues.
Briefing to the Incoming Minister for Local Government
Friday 9 March, 2018
The Department of Internal Affairs prepared a single BIM for the new Minister for Local Government ...
Proposed Employment Law Changes
Friday 9 March, 2018
The Labour-led Government has recently announced the first round of the employment law reforms that it promised pre-election. Although changes were expected, the exact nature and extent of those changes had previously been unknown.
Alert: Ombudsman's warning to Local Government
Friday 9 March, 2018
Ombudsman Peter Boshier has recently hit out at local government, saying that councils are not meeting their LGOIMA obligations and seem to resent being held accountable.
Employment law reforms announced
Friday 5 January, 2018
The Labour-led coalition Government has recently announced the first round of the employment law reforms that it promised pre-election. Although change was expected, the exact nature and extent of those changes had previously been unknown.
Trusts, Gifting and the Rest Home Subsidy
Thursday 23 November, 2017
The Ministry of Social Development (MSD) administers the Social Security Act 1964. The Act includes a residential care subsidy regime which concerns the cost of rest home care (commonly called the rest home subsidy).
Forest and Bird decision
Thursday 23 November, 2017
The recent Supreme Court decision in Hawke’s Bay Regional Investment Co Ltd v Royal Forest & Bird Protection Society of New Zealand Inc [2017] NZSC 106 is a timely reminder for local authorities and other parties exercising statutory decision making powers to be fully aware of all relevant factors when exercising such powers.
In addition, the d...
Slippery slopes: local authority liability for landslips
Thursday 23 November, 2017
Councils owe various different potential duties in relation to damage caused by landslips. In this Legal brief, we comment on a recent case where a Council was held liable for damage caused by a landslip. While the slip itself was triggered by natural causes, the underlying instability was the result of earthworks carried out by the Council more ...
Responding to a workplace accident
Thursday 23 November, 2017
It is important to have a plan in place outlining how you will respond to a workplace accident in order to balance the need to satisfy your responsibilities under the Health and Safety at Work Act 2015 (‘the Act’) and the need to protect your interests in the event of a prosecution.
New Statutory requirements for consent conditions
Thursday 23 November, 2017
Section 108AA of the Resource Management Act 1991 (“the RMA”) was inserted as part of the recent resource legislation amendments and came into effect on 18 October 2017. The new section introduces restrictions which limit the scope of conditions that may be imposed on a resource consent, in addition to the requirements of sections 108 and 220.
Actual and reasonable costs principles
Thursday 23 November, 2017
Local authorities when levying additional charges pursuant to Section 36 of the Resource Management Act 1991 (RMA) must ensure that those charges reflect the actual and reasonable costs in relation to the activity. We review a recent High Court decision – Porirua City Council v Ellis [2017] NZHC 784 – where the Court upheld an Environment Court dec...
Minister to reverse new non-notification law
Thursday 23 November, 2017
Environment Minister David Parker has indicated that the Government will attempt to reform the Resource Management Act 1991 (RMA) which was amended in April this year through the Resource Legislation Amendment Act 2017 (RLAA).
Defamation update
Friday 15 September, 2017
Local body authorities and politicians need to be particularly mindful of defamation law. In our defamation update we outline recent developments in defamation law and set out ways that local bodies can manage their defamation risk.
Local Authorities owe a duty of care to their neighbours - High Court decision
Friday 15 September, 2017
Local authorities owe the same duty of care to their neighbours as any other owners or occupiers of land. We review a recent High Court decision - Double J Smallwoods Ltd v Gisborne District Council [2017] NZHC 1284 - which held a local authority negligent for fire damage to a neighbouring sawmill operation, as a result of its failure to reduce the...
Local Authorities' decision-making requirements - Court of Appeal decision
Friday 15 September, 2017
In the recent Court of Appeal decision of Wellington City Council v Minotaur Custodians Limited [2017] NZCA 302 (Brown, Simon France and Williams JJ), the Court overturned the decision of the High Court, holding that Part 6 of the Local Government Act 2002 gives local authorities a broad discretion as to how to meet their statutory decision-making ...
Tendering pitfalls: the importance of "no process contract" clauses
Friday 15 September, 2017
In The Rintoul Group Limited v Far North District Council [2017] NZHC 1132, the Council was found to have breached a tender “process contract” and potentially liable for significant damages to an unsuccessful tenderer. We comment on the case and explain how the outcome could have been avoided.
New Bill extends enforcement powers under the LGA
Friday 15 September, 2017
A Member’s Bill from The Honourable Jonathan Young (National MP), the Local Government (Freedom of Access) Amendment Bill, was recently introduced to Parliament. The Bill proposes to widen the scope of enforcement officer powers to remove property (such as structures and tents) from council land – a power which will no doubt be welcomed by councils...
LGOIMA Update - Ombudsman's dedicated webpage for councils
Friday 15 September, 2017
The Office of the Ombudsman is taking proactive steps to provide advice and guidance to agencies (including local authorities). In earlier Legal Briefs we have referred you to the guide, ‘The LGOIMA for local government agencies’ and summarised the Ombudsman’s new approach to ‘delay complaints’. In this edition, we summarise a recent addition to th...
Health and Safety - Duty to consult, co-operate and co-ordinate
Friday 15 September, 2017
The Health and Safety at Work Act 2015 imposes a new duty on local authorities, as “persons conducting a business or undertaking” (PCBUs), to consult, co-operate and co-ordinate activities, so far as is reasonably practicable, with all other PCBUs who share health and safety responsibilities in relation to particular work.
Bribery of a public official
Thursday 13 July, 2017
The high profile prosecution of a former public official and a private roading contractor in R v Borlase and Noone [2016] NZHC 2970 raises interesting issues as to what constitutes acceptable gifts, entertainment and hospitality when engaging with the public sector in the context of New Zealand’s bribery and corruption laws.
The Ombudsman's new approach to 'delay' complaints
Thursday 13 July, 2017
The Office of the Ombudsman has just announced that, from 1 July 2017, it will be taking a new approach to how it responds to complaints about delays in making and communicating decisions on requests for official information within the maximum statutory timeframe (i.e. 20 working days).
Requiring authority status for irrigation scheme operators
Thursday 13 July, 2017
Ministerial approval of private entities as requiring authorities under section 167 of the RMA is, after the initial rush following commencement of the Act in October 1991, comparatively infrequent these days. There was no corresponding Ministerial power in the former Town and Country Planning Act, so the emergence of private entities able to desi...
Update on RJ Davidson Family Trust
Thursday 13 July, 2017
In our last Legal Brief we discussed the implications of the High Court’s decision in RJ Davidson Family Trust v Marlborough District Council [2016] NZEnvC 81 to resource consent applications. The High Court held that the King Salmon principles regarding the application of Part 2 of the RMA to the preparation of plans, also apply to resource consen...
Clarity for supermarkets or not?
Thursday 13 July, 2017
The Alcohol Regulatory and Licensing Authority has recently provided clarity on a supermarkets ability to display and promote alcohol within single alcohol areas. ARLA’s decision has been appealed to the High Court.
Relief for grocery stores
Thursday 13 July, 2017
The Government are making changes to the Sale and Supply of Alcohol Act to enable grocery stores to continue to sell alcohol.
Duties under the Health and Safety at Work Act 2015
Thursday 13 July, 2017
The Health and Safety at Work Act 2015 imposes different health and safety duties on different people, depending on their role in the workplace. Local authorities need to be aware of these duties and adopt a cautious approach in reducing the risk of a workplace accident.
Increased Compensation available under the Public Works Act
Monday 12 June, 2017
With the Government’s recent budget announcement of $32.5 billion infrastructure spending over the next four years, it is anticipated that the use of compulsory acquisition powers under Public Works Act 1981 (“PWA”) may be necessary to ensure that such projects can be completed. Recent changes to the PWA have been introduced with the intention to ...
King Salmon applies to resource consents
Wednesday 17 May, 2017
Following the Supreme Court’s finding in EDS v NZ King Salmon [2014] NZSC 38, that there is generally no need (or ability) to refer back to the purpose and principles in Part 2 of the Resource Management Act 1991 (which was in the context of a plan change), there was some uncertainty as toits application in respect of resource consent applications ...
High Court determines property arrangement is not a "subdivision"
Wednesday 17 May, 2017
Clearspan Property Assets Ltd v Spark New Zealand Trading Ltd [2017] NZHC 277 is a recent decision of the High Court which deals with the nexus between the law of property rights and the law regulating the use of land. The High Court overturned the unanimous decision of two Judges of the Environment Court in Spark New Zealand Trading Ltd [2016] NZ...
Case review: Invercargill City Council v Southland
Wednesday 17 May, 2017
This case looks at the obligations a Council may have when issuing Code Compliance Certificates, particularly in relation to the extent of any duty of care that may be owed to property owners.
Health and Safety at Work Act 2015
Wednesday 17 May, 2017
New Zealand’s poor health and safety record in the workplace has led to significant reforms in the law and the organisations governing this area.
In June 2012, the Minister of Labour established the Independent Taskforce on Workplace Health and Safety to research and critically evaluate New Zealand’s workplace health and safety system and to rec...
Your Periodic Discovery Reminder
Wednesday 17 May, 2017
This periodic reminder comments on two particular issues that can pose challenges to organisations dealing with litigation: the duty to preserve documents, and the application of privilege to reports prepared internally or externally in the course of seeking legal advice or preparing for apprehended or actual proceedings.
Key changes to limitations for civil claims
Monday 13 March, 2017
Limitation regimes are designed to protect defendants from stale claims. Claims that are brought many years after the relevant events are problematic for defendants (and their insurers), who may no longer have access to the evidence and witnesses they need to adequately defend themselves.
From 1 January 2011 the Limitation Act 2010 replaced the ...
Plan Change 1 to the Waikato Regional Plan – “Healthy Rivers” Update
Submissions on proposed Plan Change 1 close on 8 March 2017 at 5pm. The submission process provides opportunity for those affected by PPC1 to have their say about its provisions. It gives a submitter the right to participate in the hearing process and influence outcomes. If you would like any assistance to complete your submission or wish to dis...
Farming Directorships - A due diligence guide
This guide was developed between the Institute of Directors, its Waikato Branch and DairyNZ, with input from Tompkins Wake and BDO
Conscious Uncoupling - an alternative approach to separation
When actress Gwyneth Paltrow and musician Chris Martin announced they were splitting after ten years of marriage, they did not use the word “divorce”, but “conscious uncoupling”.
New Zealand's family justice system aims for civilised separations to be the rule, particularly where children are involved.