Ipsofactoj.com: International Cases [2005] Part 8 Case 8 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Just One Life Ltd

- vs -

Queenstown Lakes

District Council

ANDERSON P

CHAMBERS J

O'REGAN J

18 MAY 2004


Judgment

O'Regan J

(delivered the judgment of the court)

  1. This is an appeal from a decision of Panckhurst J (High Court Invercargill Registry CP19/02, 28 March 2003) in which he declined applications for judicial review of the decisions of the first respondent, Queenstown Lakes District Council (the Council) to grant resource consents relating to land at Wanaka. In addition to challenging the resource consents, the appellant challenged the validity of the delegation by the Council of its power to grant consents to a private company, Civic Corporation Limited (Civic).

  2. Panckhurst J found the delegation was valid, and rejected the challenges to the resource consents. He reserved costs and called for memoranda to be filed if agreement on costs could not be reached.

  3. Since the High Court decision, the Council has issued fresh resource consents for the land owned by the second respondent (Central Eclipse). These consents were granted by the Chief Executive of the Council under delegated authority and the appellant accepts they are valid and does not challenge them. However, the parties have not reached agreement on costs and counsel for the Council, Mr. Marquet, informed us no such agreement would be reached. So the appellant has proceeded with its appeal, and asks this Court to determine the delegation point and make a declaration that the Council did not have lawful authority to delegate to Civic the determination of any of the original resource consents relating to Central Eclipse’s land. Its counsel, Mr. Hughes-Johnson QC, says the outstanding issue of costs means the issue continues to have practical importance and is not moot.

  4. Thus, this appeal requires us to consider two issues, one of which is substantive and one of which is an issue of process. The issue of substance is whether the power of delegation contained in s34(4) of the Resource Management Act 1991 (the RMA) (as that provision was before its amendment by the Resource Management Amendment Act 2003) permitted the Council to delegate its powers under the RMA to Civic. The process issue requires the Court to determine whether it is appropriate to deal with the substantive issue and, if the appellant is correct in its contention as to the proper construction of s34(4) of the RMA, to make the declaration sought by the appellant. The appellant did not seek declarations from this Court that the original consents were invalid (as it had done in the High Court) because the granting of new consents meant that any such declaration would have no practical effect.

    BRIEF HISTORY

  5. Both the appellant and Central Eclipse own sections of land on Roys Peninsula, Lake Wanaka. That peninsula has been identified as an "outstanding natural feature" in terms of s6(b) of the RMA. Three resource consents relating to Central Eclipse’s land were granted in 2001. The first of these was a subdivision consent granted on 21 April 2001 on a non-notified basis. The second was a dwelling house consent, also granted on an non-notified basis on 19 October 2001. The third was an earthworks consent, which was also granted on a non-notified basis on 30 July 2002.

  6. The Council is the local authority with resource management responsibility in the Lake Wanaka area. In 1998 the Council contracted out a number of regulatory services to Civic. It entered into a contract with Civic dated 8 May 1998 to give effect to the contracting out. Under that contract, it was agreed that Civic would be responsible for resource consent administration as well as numerous other regulatory functions previously undertaken by the Council itself. In the schedule to the contract the resource consent administration service was described in greater detail. It was said to include administration of the Council’s district plans in accordance with the Council’s policies and the RMA. It said that the primary service included the receiving, processing, issuing and monitoring of all resource consent applications.

  7. Civic was established by Mr. René Kampman, who had previously been the Council’s resource management and regulatory services manager. He is the managing director and sole shareholder of Civic. Civic engaged the services of the staff of the Council who had previously been involved in resource consent matters.

  8. The contract required Civic to maintain levels of service to both ratepayers and the public at large, as existed at the commencement of the contract. It was agreed that Civic and its agents and servants would exercise the highest professional, technical, skill, care, competence and judgment in carrying out its duties under the agreement. It was also agreed that the contract did not create a relationship of partnership, principal and agent or joint venture between the Council and Civic.

  9. The consents originally in issue in this case were written on the letterhead of the Council but the signatories were employees of Civic who signed the consents in that capacity. The Principal: Resource Management of Civic, Ms Titchener, was the person who exercised the decision-making power in relation to the consents. She had commenced employment with Civic in 1999 and had been appointed an officer of the Council. Counsel referred us to the documentation appointing Ms Titchener which appeared to appoint her only as an enforcement officer but, in view of our later conclusions, nothing turns on the scope of her appointment as an officer.

  10. It was accepted by the appellant that Ms Titchener had appropriate qualifications in the planning field to undertake the task required of her in relation to the consents. The sole argument pursued by the appellant in relation to the consent process was that the Council had unlawfully delegated its powers to Civic because delegation to a company was not permitted under s34(4) of the RMA.

    WAS DELEGATION TO CIVIC AUTHORISED BY SECTION 34(4)?

  11. At the relevant time, s34 of the RMA provided as follows:

    34.

    Delegation of functions, etc., by local authorities

    (1)

    A local authority may delegate to any committee of the local authority established in accordance with the Local Government Act 1974 any of its functions, powers, or duties under this Act.

    (2)

    A territorial authority may delegate to any community board established in accordance with the Local Government Act 1974 any of its functions, powers, or duties under this Act in respect of any matter of significance to that community, other than the approval of a plan or any change to a plan.

    (3)

    A local authority may delegate to any hearings commissioner or commissioners appointed by the local authority for this purpose, who may or may not be a member of the local authority, any of its functions, powers, or duties under this Act, other than—

    (a)

    The approval of a policy statement or plan or any change to a policy statement or plan:

    (b)

    This power of delegation.

    (4)

    A local authority may delegate to any of its officers any of its functions, powers, or duties under this Act, other than—

    (a)

    The approval of a policy statement or plan or any change to a policy statement or plan:

    (b)

    The making of a recommendation on a requirement for a designation or a heritage order under Part 8:

    (c)

    The granting of a resource consent for a non-complying activity in respect of any application which is notified in accordance with section 93:

    (d)

    This power of delegation.

    ....

    (7)

     

    Any delegation under this section may be made on such terms and conditions as the local authority thinks fit, and may be revoked at any time by notice to the delegate.

    (8)

    Except as provided in the instrument of delegation, every person to whom any function, power, or duty has been delegated under this section may, without confirmation by the local authority, exercise or perform the function, power, or duty in like manner and with the same effect as the local authority could itself have exercised or performed it.

    (9)

    Every person authorised to act under a delegation under this section is presumed to be acting in accordance with its terms in the absence of proof to the contrary.

    (10)

    A delegation under this section does not affect the performance or exercise of any function, power, or duty by the local authority.

  12. Since this matter arose, the RMA has been amended. The amendment was made as part of a substantial amendment Act, and was not attributable to the factual situation which arose in this case. One of the amendments clarifies the limits on the power of delegation of powers and functions by local authorities. As a result of the amendment, a new section, s34A, has replaced s34(4). The new s34A says:

    34A.

    Delegation of powers and functions to employees and other persons

    (1)

    A local authority may delegate to an employee, or hearings commissioner appointed by the local authority (who may or may not be a member of the local authority), any functions, powers, or duties under this Act except the following:

    (a)

    the approval of a policy statement or plan:

    (b)

    this power of delegation.

    (2)

    A local authority may delegate to any other person any functions, powers, or duties under this Act except the following:

    (a)

    the powers in subsection (1)(a) and (b):

    (b)

    the decision on an application for a resource consent:

    (c)

    the making of a recommendation on a requirement for a designation.

    (3)

    A delegation under this section must be made by the chief executive officer of the local authority or by a group of senior executive officers.

    (4)

    Section 34(7), (8), (9), and (10) applies to a delegation under this section.

    (5)

    Subsection (1) or subsection (2) does not prevent a local authority delegating to any person the power to do anything before a final decision on a matter referred to in those subsections.

  13. The enactment of s34A means that a local authority’s power of delegation in relation to a decision on a resource consent is limited: any delegation must be to either a hearings commissioner or an employee. Clearly a delegation to a company is not permitted. So the question before us has practical effect only in relation to the period up to the date on which s34A came into effect.

  14. The contract between the Council and Civic did not specifically provide for the appointment of Civic as an officer of the Council. The Council’s position was that this was unnecessary as the contract had that effect in any event. The actual delegation of authority occurred at a Council meeting on 26 June 1998. At that meeting a large number of employees of Civic were identified as "to be appointed as officers of the [Council]" and a resolution making the appointment was passed.

  15. The delegation to Civic was also made at that meeting. The terms of this delegation as recorded in the papers for the meeting are somewhat oblique as the resolution also refers to Mr. Kampman and another director of Civic, Mr. Eyles, and the resolution itself was omitted from the minutes. However, no issue was taken with the finding of Panckhurst J that a resolution was passed which constituted a delegation to Civic but did not amount to a separate delegation to Mr. Eyles and Mr. Kampman. Accordingly there was a delegation to Civic but not to any of its directors. The resolution referred to the delegation to Civic of "all the functions, powers and duties under the [RMA]", with a number of specific exceptions. The authority for the delegation was said to be s34 of the RMA.

  16. In considering the legality of the delegation to Civic, Panckhurst J also gave consideration to certain provisions of the Local Government Act 1974 (which has since been replaced by the Local Government Act 2002). Section 247D(1) of that Act provided that a local authority may carry out its works and perform its functions by using its own staff or by entering into an arrangement or contract with, among others, a "person" or an "organisation".

  17. Section 715 of the Local Government Act enabled a Council to delegate "to any member of officer of the council or any of the powers of the council under the [Local Government] Act" with certain exceptions. The Council was required to record those delegations in a register. Section 715(7) said that such delegation may be made to "a specified member or officer, or may be made to the holder for the time being of a specified office".

  18. Having considered those provisions Panckhurst J advanced three questions requiring determination. These were:

    1. In terms of s34(4) of the RMA, may a Council delegate its resource management regulatory function to a company?

    2. Likewise, may a company be an officer of a Council?

    3. If a company may be an officer of a Council, was Civic in fact appointed to such office in this instance?

    Delegation to a company

  19. On the first question Panckhurst J determined that s247D of the Local Government Act was decisive because it provided that a local authority may perform a function by entering into a contract with any person or organisation and that wording would include a company because of s29 of the Interpretation Act 1999. He concluded that functions would include regulatory functions, including those relating to the granting of resource consents under the RMA.

  20. Mr. Hughes-Johnson disputed that finding. He said a Council cannot derive authority to delegate its powers under the RMA from a provision in the Local Government Act which relates to carrying out works and performing functions by contracting with third parties. He argued that the authority to delegate a power conferred on a local authority by the RMA can come only from the RMA.

  21. Mr. Hughes-Johnson supported that submission by a number of arguments. These were:

    1. Section 247D referred to carrying out works and performing functions but does not refer to the exercise of powers;

    2. The provision in the Local Government Act which dealt with powers, s715, dealt only with the powers of the Council "under this Act" (i.e. the Local Government Act). It is clear therefore that this provision did not deal with the delegation of powers under the RMA;

    3. In any event s715 provided that delegations made under that section were revocable at will (s715(8)). Mr. Hughes-Johnson said this was inconsistent with the contract between the Council and Civic in this case, which was for a five year term (and renewable);

    4. Section 594E of the Local Government Act prohibited a local authority from transferring regulatory functions to a local authority trading enterprise. Mr. Hughes-Johnson said it would be surprising if the same legislation allowed contracting out to a company in which the Council had no shareholding interest and no direct power of control (a local authority trading enterprise is, broadly speaking, a company controlled by one or more local authorities);

    5. Section 247D appeared in Part 16A of the Local Government Act, the heading for which was "Works and Contracts". This emphasises that the primary purpose is to enable local authorities to contract out works and administrative services to other bodies, not quasi judicial powers given to the local authority under another enactment; and

    6. Section 34(4)(d) provided that the local authority could delegate functions and powers other than "this power of delegation". In the event that a delegation of powers to determine resource consent applications had been validly made to Civic, Civic would be prevented from sub-delegating those powers to employees of Civic. Mr. Hughes-Johnson said this showed the delegation was intended to be directed to individuals.

  22. Mr. Marquet said s34 deals with functions, as does s247D, and that what had been delegated in this case was a regulatory function, not a power. We disagree. The Council purported to delegate to Civic quasi-judicial decision-making powers (the power to determine whether to notify an application, and the power to grant or refuse to grant a resource consent for non-notified applications). Both of these are statutory powers of decision, amenable to review by the High Court. They are not mere functions.

  23. We do, however, accept Mr. Marquet’s submission that s594E does not assist the Court in relation to the issue before it, because it deals with a transfer of functions, rather than a delegation, and is not therefore analogous to the present situation.

  24. We accept Mr. Hughes-Johnson’s submission that the extent to which a local authority may delegate its powers under the RMA must be determined under s34 which specifically addresses that topic. We agree that s247D of the Local Government Act cannot extend s34 of the RMA and that s247D does not address quasi-judicial powers conferred on a local authority by the RMA. We attach particular significance to the restriction on sub-delegation of functions in s34(4)(d) because a judicial power cannot be exercised by an inanimate entity such as a company other than through the company’s officers, employees or agents and that could not happen unless the company sub-delegated the power to an officer, agent or employee. That is what happened in the present case – the decisions in relation to the resource consents at issue in this case were made by Ms Titchener in her capacity as an employee of Civic, which could only have been effective if Civic was able to, and did, delegate to Ms Titchener the power which had been delegated to it by the Council.

  25. We therefore conclude that, with respect, Panckhurst J was incorrect in determining that a Council could delegate to a company its power of decision in relation to a resource management consent application. We note that many of the points made by Mr. Hughes-Johnson in argument, most of which we have accepted, are also made by Associate-Professor Kenneth Palmer in his case note on the decision of Panckhurst J in this case ((2003) 5 Resource Management Bulletin, 52). We share Associate-Professor Palmer’s views on the decision and its implications.

    Can a company be an officer?

  26. Our conclusion that delegation to a company is not possible is partly based on our conclusion that a company cannot be an "officer" of a local authority, as that term is used in s34(4) of the RMA. Thus, while Panckhurst J considered the issue of delegation to a company and the issue as to whether a company could be an officer as separate issues, we see them as being closely linked.

  27. The term "officer" is not defined in the RMA, and the definition of that term in s248 of the Local Government Act does not assist interpretation in this case. We were referred to the decision of Gallen J in Tauranga City Council v Dillon (1985) 1 CRNZ 525. That case concerned a challenge to a parking infringement notice which had been issued by an employee of a private security firm which a Council had engaged to undertake parking enforcement activities. In that case the employee of the security firm had entered into a separate agreement with the Council which provided that, in consideration for the Council issuing the employee with a warrant of appointment as a parking officer, the employee acknowledged that she was an officer of the Council and that while she was on duty she would be subject to the control and discretion of the Council through its principal officer or other delegated officers. The employee was, however, paid by the security firm, not the Council.

  28. Gallen J considered the meaning of the term "officer". He said (at page 529):

    The word "officer" does not have a generally defined legal meaning, but is used in different senses in different contexts. The Shorter Oxford English Dictionary defines the term as being "one to whom a charge is committed, or who performs a function, a minister or agent, or secondly who holds an office, post or place. There is some sense of service to the public involved in the term. Indeed this is the basis of the definition contained in Dr Johnson’s Dictionary.

  29. In the Tauranga City Council case, the issue before the Court was whether the parking officer was an "officer" of a local authority for the purposes of s21(10) of the Summary Proceedings Act, which dealt with the issuing of infringement notices under the Transport Act 1962. Gallen J considered that Parliament had contemplated for the purposes of that section that the administrative acts which needed to be implemented are to be carried out by persons having a special relationship to the administering authority, and that that relationship was defined in terms of being an "officer". He continued (at page 530):

    In my view, a person will come into that category when his or her relationship with the administering authority is such as to preserve the concerns which the legislation contemplates. Those concerns will reflect not in such aspects as payment of wages, but in controls in relation to the particular responsibility.

  30. Panckhurst J found that the statutory context was different in this case and that, reading s34 of the RMA in the statutory setting which included s247D of the Local Government Act, it was appropriate to conclude that a company could be an officer for the purposes of s34. We do not believe that s247D assists the analysis of this issue because it refers to entering into an arrangement with any "person" (which clearly includes a company) or "organisation". The term "officer" is not used at all. And, as we have already said, we believe that s247D does not broaden the scope of s34 of the RMA.

  31. In our view the term "officer" should be construed as applying only to natural persons who are capable of exercising the powers delegated to them by a local authority in their own right, rather than to corporate bodies which, by definition, must sub-delegate the powers in order that the thinking and analytical processes inherent in making a decision can be undertaken by the company’s own employees or officers. We accept that the statutory context in this case is different from that which confronted Gallen J in the Tauranga City Council case, but we believe that his analysis can still be applied in the present situation. We agree that, in order for a person to be an officer of a local authority, the relationship between the local authority and that person must involve a degree of control on the part of the local authority which cannot be exercised where the person claiming the status of officer is a company and must therefore act through its own employees with whom the local authority has no direct employment relationship and no legal means of exercising control.

  32. Panckhurst J pointed out in his decision that the power of delegation of s34 includes delegation to hearings commissioners, who may be appointed on the basis that they will act independently of the local authority and over whom the local authority would therefore not have "control". We accept that distinction but, in our view, it is deliberate. This section provides for a number of possibilities: one is that the local authority exercises powers through officers who are effectively acting on behalf of the local authority; another is that the Council delegates the powers to an independent hearings commissioner and the matter is then dealt with at arms length from the local authority.

  33. In our view the term "officer" in its context in s34 is limited to natural persons who have a relationship with their local authority, whether an employment relationship or another contractual relationship, that allows the local authority to exercise control. We do not believe that it is possible for a company to be an officer under that test.

    Was Civic in fact appointed as an officer?

  34. Our finding that a company cannot be an officer for the purposes of s34 makes it unnecessary to determine this point. We do, however, note that, despite the voluminous documentation relating to the contracting out, including the contract dated 8 May 1998, there is no explicit appointment by the Council of Civic as an officer of the Council. There is one reference in one of the resolutions passed by the Council to Civic in a context which implies that Civic has become an officer, but no explicit appointment to that effect.

  35. Mr. Marquet emphasised to us that the persons involved in the decisions to grant the resource consents in this case were persons who had been separately appointed as officers of the Council and, in any event, most of Civic’s employees (but not Ms Titchener, the decision maker in this case) had been previously employed by the Council and were well known to the Council. In our view that does not provide any basis for concluding that Civic itself is an officer of the Council.

  36. It is notable that the contract between the Council and Civic makes no mention of the fact that the Council will appoint certain employees of Civic as officers of the Council, and there is also no separate agreement between each officer and the Council, as there was in the Tauranga City Council case. In the absence of any specific delegation by the Council directly to employees of Civic in their capacity as officers of the Council, we do not see the appointment of the employees of Civic as officers of the Council as having any significance in the determining of the issues before us in this case.

    SHOULD A DECLARATION BE MADE?

  37. Mr. Hughes-Johnson argued that a declaration should be made in this case because of the outstanding issue of costs. Mr. Marquet argued that the costs issue had not yet crystallised, because the High Court had yet to determine the question of costs. He argued that the Court should not make the declarations sought by the appellant in circumstances where the potential impact on the Council and others is significant (because a large number of non-notified applications had been processed by Civic and resource consents issued by Civic under the deported delegated authority of the Council), but the significance to the appellant is very limited.

  38. In the High Court Panckhurst J considered whether declarations should be granted and expressed the view that, had he found that the delegation to Civic was unlawful, he would have been hesitant to grant the relief sought. However, Panckhurst J’s comments were directed towards the relief then sought by the appellant which included orders quashing the relevant resource consents. As those resource consents have now been replaced by new, valid resource consents, no such orders were sought in this Court. Mr. Hughes-Johnson argued that the unlawful delegation by the Council meant that the resource consents were in the category of "flagrant invalidity", referred to by Cooke J in A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at p4, and that the consents were void as a result but that issue can be put to one side now because this Court is being asked only to make a declaration that the delegation by the Council was unlawful. We do not believe that the delegation itself comes within the category of "flagrant invalidity" referred to by Cooke J – indeed, it was found to be lawful in the High Court and it is clear that the Council acted in good faith and on the basis of legal advice in making the delegation. So the Court has a discretion as to whether the declarations sought by the appellant should be granted.

  39. But a discretionary withholding of relief is not the normal outcome of a successful attack on a reviewable decision. If some form of relief could have a practical value then it ought be granted. This litigation has been concerned with the possibility of a declaration. The issue is not confined to whether or not a declaration ought be made but to whether no form of declaration could have any practical utility. It might well be that a declaration that the impugned consents were issued unlawfully, without elaboration, would provide both the appellant’s apt vindication and the respondent’s more general concerns.

  40. Even if relief were declined, that ought not necessarily be determinative of the issue as to costs. The High Court might think for example that the indications against the grant of relief are not necessarily indications against the grant of costs. For these reasons we think the question of possible relief as well as the issue of costs should be remitted to the High Court for determination.

    CONCLUSION

  41. We therefore allow the appeal by vacating the judgment in favour of the respondents and remit to the High Court the issues of relief and judgment, including any judgment in respect of costs.

  42. The appellant is entitled to costs in this Court, against the Council, but the position of Central Eclipse is not necessarily the same as that of the Council. We hope all parties will be able to agree on costs in relation to this appeal, but if that does not happen, memoranda should be filed. The appellant’s memorandum should be filed within four weeks, and those of the respondents two weeks later.


Cases

Tauranga City Council v Dillon (1985) 1 CRNZ 525

A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 

Legislations

Resource Management Act 1991: s.34(4), s.34A

Resource Management Amendment Act 2003

Local Government Act 1974: s.247D(1), s.594E, s.715

Interpretation Act 1999: s.29

Authors and other references

Associate-Professor Kenneth Palmer, case note on the decision of Panckhurst J in this case ((2003) 5 Resource Management Bulletin, 52

Representations

A C Hughes-Johnson QC and G A Hair for Appellant (instructed by Preston Russell, Invercargill).

N S Marquet and S J Anderson for First Respondent (instructed by Ross Dowling Marquet Griffin, Dunedin).

R E Bartlett for Second Respondent (instructed by Burton & Co, Auckland).


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