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ABUSE OF LEGAL PROCESS

by Don Briggs – July 1, 2009

 

Kapiti Coast District Council
Abuse of Legal Process

 

This report explains how a public process, administered by a public body, whose given duty is to provide democratic representation of public interests, came to approve a major communal change to the set District Plan, entirely without any public contribution.

From initial acceptance of the application for major land development, to its final approval, all control of the process throughout was conducted by privacy.
And, it all has been accepted, by every public avenue open to public appeal, including the Environment Court, Auditor General, Attorney General, Minister of Local Government, Ombudsman and last but not least, a majority of Kapiti’s elected councillors

The ‘Vote’

Ironically, the only “appearance” of there being any public participation was through the Public Submissions process, which was based, contrary to rules, and all logic, on material issued, NOT by KCDC as required in law, but by the airport owner himself – yet the result was still overwhelmingly opposed to the proposal. which should have meant it be declined.
The result of the 1,323 public submissions received, 1,161 (87.7%) opposed the proposal, but it made no difference to the application being approved.

Legal Reference

All legal references quoted, unless stated otherwise are based on Local Government Act 2002 being the overarching legislation covering all processes concerning local authority governance. This fact has been refuted by KCDC in its defence, but is a fact clearly acknowledged in common law and confirmed by the Environment Court which ‘struck out’ the writers appeal on grounds that the Resource Management Act, (RMA), claimed by KCDC to be the only applicable legislation, “does not cover matters of process” ergo, the process is clearly a function of the L.G.Act.

Points at Law

All changes to the District Plan are subject to the ‘Special Consultative Procedure’ (SCP). This requires all proposals of significance to be publicly notified (confirmed) through the public circulation of an independent report.
Such independent report must give realistic details of environmental, economic, social and cultural impacts.
It must also show authentic approval of Maori, a point which has recently been exposed as being falsified.

Most significantly, the report has to be produced by Council staffand not the developer.
Also, it must be produced prior to any public considerations and not many months after it has been informally and privately put before the general public, thereby having the effect of subverting the sole purpose of the public notification process.

In fact, an informal and intensive publicity programme was launched via the local press supported by advertised public presentations in October 2006, while formal registration of Plan Change 73 was not recorded as formal, until March 2007.
This delay subverting the process whereby the public should be served by the requisite Council produced independent report on which to base submissions. Hence, all public submissions were made on invalid (hearsay) information.
Proper action in such a case, where the public had been influenced informally ahead of proper Council based notification, was for to re-issue the factually interpreted legal document for which KCDC was bound to do.

KCDC did NOT do this and simply rubber stamped the hearsay material supplied by the applicant. This deliberate evasion of duty put before the public such totally unsubstantiated claims as “creating 8000 jobs”, the development of all manner of undefined businesses, all within unspecified boundaries and listing no negative aspects whatsoever. All displayed on entirely unauthorized and highly imaginative artists impressions of exotic designs. As material from which the Kapiti public was to base their submissions.

All the subsequent controversy, including public meetings and protests were the result of this unauthorized information being put before the public, which in law should not have been allowed as the officially recognized KCDC material.

It meant, in reality KCDC had surrendered its duty to provide factual information to the public – to the landowner who was, by default, allowed to control the entire process.

Consequences

It is clearly in error to merely circulate private papers (or, in this case a privately produced compact disk) on which public submissions are to be based, disguised as a Council certified “independent report”.
Such action totally negates the point of having a notification process at all, leaving the only real public contribution to the application, to the acknowledgement of its receipt and the final stamp of its approval.
Hence, what should have been a public process became entirely privately administered resulting in 133ha of central Kapiti land, fixed in the district plan as an Airport, to become land open for any. Yet to be decided purposes at the discretion of the land owner.

Quote; “I hope to be able to show a plan by the end of this year.” said Mr Noel Robinson, following KCDC approval granted in May of the same year.

Evidential Proof

– 1 –
Q: at Southwards Theatre at the public meeting of the Environment and Regulatory Committee of November 2007. “Why has the Special Consultative Procedure not been applied?”.
A: “Because we did not follow the L.G.Act”.
This is not only illegal, but also contrary to natural justice in that if it was legitimate KCDC would have no mandate to be involved in the process at all.

– 2 –
Statement from page 16, of KCDC report to Commissoners’ Hearing of November 2007: “These issues are normally addressed through a report, which must be made available from the time of notification of the plan change. For Private Plan Changes however Council does not have to address Section 32 duties until it has made a decision”.
This statement is totally without legal foundation and would, if true, mean that a “Private” plan change would escape all public scrutiny and pass through the process entirely without any public participation whatsoever. But this is, in fact what happened!

– 3 –
Headline statement from the Council Report presented at the Environment and Regulatory meetings of February and repeated in March 2007. “The Council’s Significance Policy is not triggered by this report”.
These two meetings were the first formal acceptance of first Plan Change 70, changed to 73, on failure of 70 having been voted out. The meetings, held before a sub-committee, were the only occasion that Plan Change 73 was open to discussion. It never appeared for full Council discussion before a mayor. By appearing before a sub-committee only rather than full Council it escaped the possibility of being irrevocably lost on the vote. (Which in fact happened).
This above statement refers to Councils’ list of Significant Assets, which are considered to have protection under L.G.Act (pt6.(90) and written into rules as a recorded asset. The Airport land, being obviously a major listed asset, should have made it “triggered by the report”, hence the statement was a deception.
By making this statement, so worded, it falsely gave support to the avoidance of having to apply the requirements of L.G.Act.

Maori Approval

It is a standing requirement for any change to the district plan to be subject to the Special Consultative Procedure. Pt 6 of the L,G.Act. In the case of PPC 73, it was particularly important as the issues of original Maori ownership of most of the land gave Maori special interest.
A letter purporting to give that necessary assent was included in the private application package illegally put before the public.
This letter was false, in that it was not authenticated by iwi and was clearly informal as the signatories had no iwi authority to write it.

Immediately it came into the public domain it was brought to the attention of iwi and was immediately ordered to be withdrawn in the form of a second letter.
I (Don Briggs) was given a copy of the legal letter and insisting the position be formalized by taking both to KCDC. Nothing was done and the application remained open as official information bearing the false letter only.
This single point alone was sufficient to make the application illegal.

This point was later to be revealed inadvertently in the form of an article appearing in Kapiti Observer reported as a breach in Maori hierarchy with iwi claiming they have been subjected to “treachery” by certain Maori claiming to represent iwi without proper authority.

The reporter was instantly dismissed after 12 years service to the newspaper and the community…

It should be emphasized that although appearing to the public as an internal Maori problem this is a direct result of KCDC failure to follow L.G.Act processes in the administration of the material put before the public – in accordance with Pt 6 of the Act.
The Maori claim should be made on KCDC, as failure to follow due process, not to seek redress through internal hierarchy.

Don Briggs
July 1, 2009

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