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Mangawhai Ratepayers VS Kaipara District Council

12th of April 2018 . Mangawhai . 

Donations to the Mangawhai Ratepayers and Residents' Association can be made through : https://givealittle.co.nz/org/mangawhairatepayers

In summary : The people we elected to serve us have been using our own money against us to crush our democratically elected watchdog organisation - Mangawhai Ratepayers This sets a dangerous precedent for the sanctity of our democracy and the rule of law in New Zealand.

For the best account on the latest in this case , please head over to www.kaiparaconcerns.co.nz
The story ....
In 2006 the ratepayers of Mangawhai realised that they were being locked out of meetings during which the Kaipara District Council's CEO was getting consent from our elected representative councilors  to borrow over $57,000,000 to pay for cost blowouts to the Mangawhai Eco-Care sewerage reticulation scheme ( for which, during earlier consultations, a total of $33 million had been agreed to ) . 
Every effort was made by the democratically elected executive group of the Mangawhai Ratepayers and Residents' Association ( Inc. ) to be included ( as, according the Local Government Act's section 83 on Special Consultative procedure is our right ) in these meetings.

When it was revealed in the 2013 Annual Plan that we now owed $57 million it was decided that it necessary to pursue justice through a judicial review.

When the Kaipara District Council and Central ( National-led) government became aware of this , the council was dissolved and commissioners, who set about drafting The Kaipara Validation of Rates ( and Other Matters ) Bill , were imposed to replace them.

After that bill had gone through the Select Committee debates it became an Act, all attempts to get justice were blocked - by the government and its Crown Agencies and by the courts.

The finding of a '6 month'inquiry by the Office of the Auditor General ( whose legal responsibility it is to do 'due diligence' on all substantial loans to be taken by councils ) was released 2 years late, - just after the statute of limitations was passed - thus protecting the guilty parties. The CEO of Kaipara who had overseen all the illegal borrowing was awarded a $240,000 package upon his resignation.

Upon further investigation by the executive of the Mangawhai Ratepayers, more evidence of the Kaipara District and Northern Regional Council's non-compliance with the Local Government (Rating ) Act by  was discovered.
Because those organisations were suing the remaining ratepayers who were refusing to pay rates (and whose bank accounts they had no access to because they were un-mortgaged properties - more than 250 ratepayers actually had their bank accounts raided for the amounts they were withholding ) Mangawhai Ratepayers' Chairman Bruce Rogan and his wife Heather offered, on behalf of the others,  to test the legality of the claims being made against them.

As soon as the High Court ruled that the way rates had been collected was inconsistant with the Local Governmnet (Rating ) Act , the Northland Regional Council appealed under urgency.  The High Court's ruling was overturned and costs have been awarded against the Rogans and the Mangawhai Ratepayers' and Residents' Association.

6 August 2018
September 2018

For a more detailed chronology of this whole sorry affair, please head over to www.kaiparaconcerns.co.nz

Donations to the Mangawhai Ratepayers and Residents' Association can be made through : https://givealittle.co.nz/org/mangawhairatepayers
Mangawhai Ratepayers and Residents Association website : https://mrrainc.weebly.com/previous.html
and click here to read the Court of Appeal's ruling.
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9th of April 2018 : Mangawhai Focus Newspaper

NRC Welcomes rates appeal


The Northland Regional Council has welcomed a Court of Appeal decision on the way it set due dates for the payment of rates and its arrangements for rate collection within the Kaipara district.

The Court of Appeal ruling at the end of March comes after the Northland Regional Council (NRC) filed an urgent appeal against a High Court decision quashing several years of its rates in the Kaipara district and an earlier related decision by the High Court which found two issues with the council's rating practices.

The issues were how council set due dates for the payment of rates and its arrangements for rate collection within the Kaipara district.) A ‘relieved’ council chairman, Bill Shepherd, says the council will need to examine today’s Court of Appeal finding in more detail over the next week or two. However, essentially – while confirming some technical breaches by the regional council – the decision allows the regional council’s appeals against the earlier High Court findings and provides muchneeded clarity for ratepayers and councils all over New Zealand.

Chairman Shepherd says at the heart of the case – which had implications for local authorities nationally – was the council’s use of its Kaipara district counterpart to collect rates on its behalf. While the Court of Appeal judgement is a lengthy one and traverses a number of areas, overall it largely supports the regional council’s position, the court declaring the council’s rates for the affected period valid and ordering costs against the plaintiffs – Bruce and Heather Rogan and the Mangawhai Ratepayers and Residents Association). In its decision, the Court of Appeal refers to collaborative arrangements for rate collection as having “the laudable aims of minimising cost and increasing efficiencies as required of the Regional Council by the local Government Act”.

“The decision means we can continue with the efficient administration of rates through use of shared service arrangements, providing value for money for our shared ratepayer base,” Chairman Shepherd says.
 
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3rd of April 2018 by Paul Campbell at the Kaipara Lifestyler newspaper

Mangawhai Rates Review Rejected

The Court of Appeal has ruled that more than $14 million in Northland Regional Council rates set for Kaipara between 2011 and 2016 are valid, overturning a lower court decision that invalidated rates set between 2011 and 2016.

The High Court in Whangarei made the invalid ruling last year, but did not order a refund.

An application for judicial review was filed by the Mangawhai Ratepayers and Residents’ Association, its chairman, Bruce Rogan, and his wife, Heather.

Last week’s Court of Appeal decision followed an NRC appeal against the High Court decision quashing several years of its rates in the Kaipara district and an earlier related decision by the High Court; which found issues with the rating practices — how council set due dates for the payment of rates and its arrangements for rate collection within the Kaipara district.

NRC chairman, Bill Shepherd, says the council “will need to examine the latest finding in more detail over the next week or two.

“However, essentially — while confirming some technical breaches by the regional council — the decision allows the regional council’s appeals against the earlier High Court findings and provides much-needed clarity for ratepayers and councils all over New Zealand.” 

He said the case had implications for local authorities nationally and at its heart was the NRC use of Kaipara District Council to collect rates on its behalf. 

The judgement refers to collaborative arrangements for rate collection as having ‘the laudable aims of minimising cost and increasing efficiencies as required of the Regional Council by the local Government Act’.

“Today’s decision means we can continue with the efficient administration of rates through use of shared service arrangements, providing value for money for our shared ratepayer base,” Mr Shepherd said.

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29th of March 2018  New Zealand Herald

Northland Regional Council rates in Kaipara valid, rules Court of Appeal

The Court of Appeal has overturned a lower court ruling that invalidated five years worth of the Northland Regional Council rates in Kaipara worth more than $14 million.

In August last year, the High Court in Whangarei ruled in a judicial review proceeding that NRC rates collected in Kaipara between 2011 and 2016 were invalid but did not order a refund.

The application for judicial review was filed by the Mangawhai Ratepayers and Residents' Association, its chairman, Bruce Rogan, and his wife, Heather.

NRC were granted an urgent hearing in the Court of Appeal to challenge the High Court ruling that the Kaipara rates were invalid.

The Rogans challenged how NRC set due dates for the payment of rates and objected to the Kaipara District Council collecting NRC's portion of rates in Kaipara.

The Court of Appeal ruled the NRC's failure in the rates bill to state the due date for payment was a technical irregularity that did not disadvantage ratepayers.

The Court of Appeal ruling means those who refused to pay the NRC rates in Kaipara will have to pay them now.

NRC chairman Bill Shepherd said while the cost of the appeal – estimated to be between $170,000 and $190,000 – was not cheap, the council felt the issues at stake had been too important not to appeal and felt that position had been vindicated by the recent judgment.

"The collection of rates by the district councils in the region on behalf of the regional council provides significant cost savings which benefit the region's ratepayers; the cost of setting up our own, stand-alone rates collection agency would be many times the legal costs incurred in this action."

He said while confirming some technical breaches by NRC, the Court of Appeal decision provided much-needed clarity for ratepayers and councils all over New Zealand.

Bruce Rogan described the Court of Appeal judgment as an "absolute disgrace" to the ratepayers and a huge slap to civil rights.

"Councils will never have to get validating legislation through Parliament because they know courts can use the Judicature Amendment Act 1972 to validate them."

He has ruled out an appeal to the Supreme Court.

 Donations to the Mangawhai Ratepayers and Residents' Association can be made through : https://givealittle.co.nz/org/mangawhairatepayers

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28th of March 2018
Having lost every attempt to seek justice through Judicial Review in the High Court due the passing of the retrospective Kaipara Validation of Rates and other matters Act in 2013 - thus protecting whoever was involved in borrowing over $57,000,000 on behalf of Mangawhai Ratepayers - who were never consulted, the Chairman of the Mangawhai Ratepayers and Residents' Association, Bruce Rogan ( and his wife Heather ) pursued the case using their own situation to test whether the courts would rule that the Northland Regional and Kaipara Districts are indeed compelled to comply with the Local Government (Rating ) Act. 
Watch this space.  For more detail go to the Kaipara Concerns website.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV 2015-488-182 [2018] NZHC 228

BETWEEN RICHARD BRUCE ROGAN & HEATHER

ELIZABETH ROGAN Appellants

AND KAIPARA DISTRICT COUNCIL

First Respondent

NORTHLAND REGIONAL COUNCIL Second Respondent

Hearing: 9 February 2018

Counsel: J Browne for Appellants

P Moodley for Respondents

Judgment: 23 February 2018

JUDGMENT OF DUFFY J

This judgment was delivered by me on 23 February 2018 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel: Henderson Reeves Connell Rishworth, Whangarei Brookfields, Auckland

ROGAN v KAIPARA DISTRICT COUNCIL & NORTHLAND REGIONAL COUNCIL [2018] NZHC 228 [23 February 2018]

.[1] On 26 September 2017 I dismissed the appeal of Richard and Heather Rogan

(the Rogans) against the recovery of rates of the Kaipara District Council (KDC).1

The Rogans now seek leave to appeal to the Court of Appeal against this decision.

[2] The question for which leave is sought is:2

Was the High Court’s interpretation of s 60 of the Local Government (Rating) Act 2002 correct?

[3] There is no dispute between the parties about the correct test for the grant of

leave to appeal.

[4] Leave is required because this is a second tier appeal, the proceeding having

originated in the District Court.3 The parties have proceeded on the basis that the test

for leave under the Senior Courts Act 2016 is materially the same as its predecessor s

67 of the Judicature Act 1908 and so the principles in Waller v Hider continue to apply:4

... the test is well established. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

[5] There is no dispute the question as framed by the Rogans is a question of law.

Where the parties differ is whether it can be characterised as a question capable of

bona fide and serious argument; and whether the case involves some interest, public

or private, of sufficient importance to outweigh the cost and delay of a further appeal.

[6] The Rogans contend the question they raise is capable of bona fide and serious

argument as s 60 of the Local Government Act is unclear and capable of a number of

interpretations. They argue that s 60 does not refer to rates recovery proceedings and

there is nothing in the language of the section that expressly engages its application to

the type of challenge they have made against the payment of the KDC’s rates.

1 Rogan v Kaipara District Council & Northland Regional Council [2017] NZHC 2329. 2 This question was formulated during the course of the hearing. 3 Senior Courts Act 2016, s 60. 4 Waller v Hider [1998] 1 NZLR 412 (CA) at 1-2.

.[7] On the other hand, the KDC argues the interpretation the High Court has

adopted is plainly the only available interpretation and none of the other interpretations

identified by the Rogans is seriously arguable.

[8] I accept that s 60 is a difficult section. It states that a person may not refuse to

pay rates on grounds of invalidity unless that person has brought proceedings in the

High Court to challenge the validity “on the ground that the local authority is not

empowered to set or assess the rates on the particular rating unit.” Accordingly, the

section identifies a very specific type of challenge to the validity of rates.

[9] There are subsequent steps that follow the setting or assessing of rates, which

a local authority is required to take before it can recover unpaid rates. For example, a

local authority may correctly set or assess rates, but then fall into error when it comes

to completing one or more downstream steps in the recovery process. In the judgment

I delivered I concluded that in those situations, unless a ratepayer obtained interim

relief in judicial review proceedings against payment the obligation to pay the rates

would remain. In such circumstances, if the judicial review was later found to be

successful the ratepayer would then have to take steps to recover rates paid from the

local authority.

[10] The Rogans have always contended that a challenge to the validity of the rating

process that focuses on steps taken after the rates have been set or assessed is not

caught by the proviso in s 60, and accordingly they are free to challenge the validity

of those steps as part of their defence in a rates recovery proceeding.

[11] I acknowledge s 60 is silent on the question of challenges to rates that are not

based on alleged validity of the setting or assessment process. The possibilities are:

first, that Parliament intended those type of challenges could provide no excuse at all

for refusal to pay rates (which is what I found); secondly, as the Rogans argue, s 60

does not address those type of challenges and accordingly they are outside the section’s

scope, hence there is nothing to preclude them being raised in a rates recovery

proceeding; and thirdly, when Parliament used the words “empowered to set or assess

rates” it was broadly referring to the entire process for recovering rates, in which case

the proviso would apply to challenges made against any step in the rating process.

.[12] The various available interpretations of s 60 and the lack of clarity in the

language of the section persuade me that the question as to its proper interpretation is

seriously arguable. The impact of such questions and their answers extend beyond the

Rogans to other ratepayers. There will be a general and ongoing benefit from a

decision from the Court of Appeal on s 60.

[13] Accordingly, I reject the KDC’s argument that the meaning of s 60 is clear and

that there is no room for serious argument about other possible interpretations.

[14] The KDC argues that the delay that a second appeal will bring is not justified

in this case. It points to the fact the Rogans were also parties in a judicial review of

rates set by the KDC, and the very points they have argued in the appeal before me

could have been included in the judicial review. I accept that is so. However, if they

had included the present argument in those judicial review proceedings, which I also

heard, my conclusion would have been the same, and then they would have then been

entitled as of right to appeal to the Court of Appeal. I do not see their failure to take

the opportunity to include the argument in the judicial review proceeding as a

disqualifying factor.

[15] I understand from the parties that in addition to the Rogans there are five other

ratepayers who have not paid rates and recovery procedures were stayed against those

persons now awaiting the outcome of my decision on the appeal. If those proceedings

proceed those ratepayers will be entitled to issue judicial review proceedings and the

delay the KDC envisages from the granting of leave to appeal will nonetheless occur.

Indeed, if judicial review proceedings are issued the delay will be more protracted than

if there is a second appeal. In this regard I accept the Rogans’ argument that the issue

on which they seek leave to appeal is confined and should be able to be dealt with

quickly and efficiently in the Court of Appeal.

[16] I understand that since delivery of my judgment on the appeal another

ratepayer has paid the rates owing, but the five ratepayers previously mentioned hold

fast to their present stance. In such circumstances I consider the cost and delay of a

further appeal does not outweigh permitting the Rogans to bring their appeal before

the Court of Appeal.

.[17] Accordingly, I am satisfied that leave to appeal should be granted.