Mangawhai VS Kaipara
20200520
An urgent call for support.
N.B. This is an issue of national - not just local - importance.
After 8 years of tirelessly working to seek justice for Mangawhai Residents and Ratepayers following the $57million cost blowout of the Eco-Care Sewerage Reticulation scheme, their Association's chairman, Bruce (and wife Heather) Rogan have been ordered by the Court of Appeal to pay $115,000 costs by the 22nd of May 2020 after having taken a test case on behalf of 105 other Mangawhai property-owners and having unsuccessfully sought leave to appeal to the Supreme Court.
The Mangawhai Residents and Ratepayers Association Inc will have to be wound up and will lose $8,000 - AND if the Rogans do not pay, the Kaipara District Council will put the charging order they have into effect to force the sale of their Mangawhai Heads home.
The precedent that this case sets effectively emasculates the role of Ratepayer and Residents' Associations have to hold their Councils to account and to the rule of law. Here's the most recent correspondence between Bruce Rogan and the CEO of Kaipara District Council .
A Give A Little page has been set up and any financial contribution you and your organisation could make would be greatly appreciated.
Please write to your elected representatives, Councillors and Members of Parliament, newspapers and forward this request for help through to your members.
Head over to www.kaiparaconcerns.co.nz to read some more in-depth analysis.
If democratically elected groups of sovereign citizens can not hold those whom they have entrusted with power to the principles of good governance, accountability and transparency, - then who can - and who will ?
Is this the end of democracy in New Zealand ?
The precedent that this case sets effectively emasculates the role Ratepayer and Residents' Associations have in holding their Councils to account and to the rule of law.
The Court of Appeal has ordered the Chairman of our democratically elected Mangawhai Residents and Ratepayers' Association Inc to pay $115,000 costs for having the audacity to hold our Kaipara District and Northland Regional Council's to account over the illegality of the way they're charging rates. The Mangawhai community lost $68,000,000 through illegal ( unconsulted ) borrowing.
Radio New Zealand : Checkpoint. "Elderly Mangawhai Couple May Lose Home in Long Running Rates Dispute."
Sent to members of the Mangawhai Residents and Ratepayers' Association Inc
Sunday, 3 May 2020
Final settlement of dispute with Council and Judiciary
This matter is now going to end, very badly for the Rogans, and for the Mangawhai Residents and Ratepayers' Association Inc.
The MRRA was a party to some of the proceedings so the awards of costs in those proceedings are partly the responsibility of the Association.
However, it only has the money that its members provide, and the Kaipara District Council does not care a fig for the hardship it is inflicting on the community it is purportedly there to serve.
We are going to pay the demanded amount on the date they have set, and we will use whatever funds are in the MRRA account to reduce the amount we have to pay.
If you are able to assist us, the Mangawhai Residents and Ratepayers Association Inc account number is 38 9012 0318164 00.
A GiveALittle page was set up on the 8th of May 2020. Any contributions are greatly appreciated.
Many of you have generously helped this cause in the past and you must feel under no obligation to put your hand in your pocket again.
As things stand, the MRRA will contribute approximately $8,000, almost all of which is money that you, our supporters, have recently contributed, and the Rogans will make up the balance (approximately $107,000). We would so much prefer to donate this money to the wonderful people who are saving our community.
The Kaipara District Council have filed a charging order against our house in Mangawhai, so if they don’t get their money by their deadline they will use Neutze once more to sell us up. Neutze and other lawyers (including our own) have made millions out of this.
At the end of this we will call a special general meeting (online, using zoom or skype) of the MRRA and propose to wind the association up.
Of course, if there are community members who wish to take it over and give it a new direction, they are warmly encouraged to do so.
After this the MRRA will have NO liabilities at all (nor any assets).
I did write a quite long letter to members which I did not send, after advice. Anyone interested needs only email me and I can send it to you.
brucerogan2018@gmail.com
A letter was received from the KDC Chief Executive on 30 April 2020
In it she advised that our request to compromise had been rejected, but with a concession to waive interest charges.
The letter advises that there is $115,233.86 to pay, and this must be paid by 22 May.
We have responded, with a specific request for the bank account details into which they expect the money to be paid.
Kind regards,Bruce Rogan Chair of Mangawhai Residents and Ratepayers' Association Inc.
=============================================================
20200430
To: «Name_1» «name_2»
Membership Number «Member_no»
Thursday, 30 April 2020
Dear «Name_1»
A special Thank you to the Association
This is an update, as promised. In our previous communication to you we said the following:
I would like, once again, to record my gratitude to all of you for your understanding and generosity when you learned of the circumstances surrounding the litigation against KDC/NRC.
While we are appealing for help to reduce the impact on us of this demand for money, it is important to point out that the sum being demanded does not contain any arrears of rates. We settled up the outstanding rates a long time ago, once we had finally got KDC to agree to accept rates payments as they are required by law to do. We have met all of the requests for rates payments out of our own funds, as it should be.
We are in negotiation with the council to accept an offer to settle, and that is currently under consideration.
We will let you know how that turns out.
Once again, our deepest thanks to all of you who have stood by us once more.
Well, those negotiations are now at an end, and the position is that the council has agreed to waive a few dollars in interest charges but insists on payment of all the rest.
If you have the time and inclination to read our submission below, and Miller’s response you will see that two formal LGOIMA requests for information have simply been ignored.
Because of the way courts treat councils, councils no longer feel under any obligation whatsoever to comply with the law.
The MRRA is one of the litigants in this fiasco. The only money it has is what you give it. The council do not give a fig about the source of the money it seeks, as long as it gets it.
If it doesn’t get it, it will file proceedings to sell the Rogans’ house, so if we (the Rogans) want to avoid that we will have to pay up.
For those of you willing and able to help, and any amount is deeply appreciated, the bank account number is 38 9012 0318164 00. (That is the Mangawhai Residents and Ratepayers' Association Incs, NOT the Rogans private account).
This is what we submitted:
N.B. This is a long read . If you'd like to listen to it instead, you can copy and paste it into a text to speech addon which you can download in Mozilla Firefox and other web-browsers.
29 Alamar Crescent
Mangawhai Heads 0505,
Dear Louise,
Reply to your letter of 9 April 2020
We have received your letter of 9 April 2020, and we are, as you might expect, disappointed that council is not willing to meet us half way. We think the offer we have made is fair and reasonable, and for the reasons set out below we think it would be fair and reasonable of Council to reconsider its position.
All the litigation that occurred resulted from a vendetta against ratepayers (and in the end, us) on the part of commissioners, John Robertson and Peter Winder, both of whom knew perfectly well that they were supposed to exercise prudence when spending ratepayer money to recover debt. Robertson showed no restraint whatsoever, and refused point blank to negotiate with anyone but a chosen few.
Winder was appointed to the role of Crown Manager with a very clear and unambiguous mandate to take the cost-benefit of all of his actions into account before proceeding. Not only did he not do that, but when he relinquished his role he was clearly ignorant of (or blithely unconcerned about) what it had cost to perform it and what he had achieved for all the cost. It is clear that the only thing on his mind was to impale us on his sword, regardless of any considerations of cost or fairness.
Your offer to forgo the interest charges is noted and appreciated. That leaves the various costs awards and the penalties, all the rates to 30 June 2020 having been paid.
COSTS
You say that “Council incurred very significant costs in pursuing you.” The most important element in that sentence is “Pursuing you”. It speaks volumes about the vindictive and punitive attitude of the council towards us, and hundreds of others. It should not be forgotten that every step of the way we were standing before the courts as representatives of all the other ratepayers whom council was also “pursuing”. We did not have to be “pursued”. We were not trying to escape anyone or anything, as the record very clearly show. The figure expended in this prosecution (persecution) is in excess of $2 million for legal costs on the Rogan case alone and that does not take into account the internal costs incurred by the KDC itself, or the costs incurred suing other ratepayers. We think we are entitled to know how much council actually spent on this witch hunt and we are accordingly requesting under LGOIMA the current accurate figures that were requested by Councillor Larsen at the final meeting attended by Winder.
You are, after all, prepared to sell our house from under us. We should at least be able to know and let others know what you spent getting to that point.
The amount at stake in 2014 was just over $20,000. However, because we were prevented by the KDC from paying arrears of rates, the only amount really in dispute was perhaps a few thousand dollars in penalties. Most of those were incurred because of council’s refusal to let us pay rates instalments as they fell due and to pay the arrears of rates.
We ask you to consider if the decision to pursue us, along with hundreds of other ratepayers, was an equitable decision given the situation at the time, and a financially prudent decision given the enormous amount of money expended. We also ask you to consider whether it was a just decision given the questionable legality of the policies that the KDC applied, the involvement of the Department of Internal Affairs (DIA), and the personal motivation of some of those involved in the decision-making.
You may think that the courts have justified Council’s stance. The courts have effectively re-written the Rating Act so that local authorities may now ignore their statutory obligations with impunity. That is a windfall of immense value to unscrupulous councils, of which KDC was certainly at one time one of the worst. We also emphasise that in nearly six years of litigation we have not been allowed to have our defence to the rates recovery action heard by any court. Our fundamental right to defend a legal action, affirmed in the NZ Bill of Rights Act, has been denied to us by the courts. We do not in any way hold Council to account for this. It is purely the unwillingness of the court system to jeopardise a status quo that protects the civil service and the moneyed interests in society over giving justice to ratepayers. We witnessed judicial incompetence on a scale we never imagined possible, and we could not avoid the inference when looking at the results, that the system is irredeemably corrupt.
While legal action has now come to an end, we take this opportunity to point out some of the salient issues which we believe impinge upon our Moral, as opposed to arbitrarily imposed legal, liability for the amount that Council is claiming.
Legal proceedings were unnecessary and unreasonable and driven by the KDC Commissioners, the Crown Manager, and ultimately the Department of Internal affairs
Our actions were always reasonable.
The withholding of rates in 2012 came about because of the acknowledged (publicly in writing by the mayor) illegalities of the KDC and the refusal of the regulatory authorities to take any action. Our actions as whistle-blowers were praised in Parliament as being public-spirited.
As chair of the MRRA, I told all those withholding rates to put the monies aside in a separate bank account so that the rates could be paid once the legal issues had been resolved.
I also tried to make arrangements during this time to pay NRC rates directly to the NRC. The NRC refused to cooperate.
Once the KDC acknowledged the illegality of the rates in 2012, occasioning a written apology from Mayor Tiller to all ratepayers, we entered into an agreement with then chief executive Steve Ruru (confirmed by a Council resolution) that a focus group would be set up of councillors, KDC staff, and ratepayers to resolve the illegality issues. Ratepayers were prepared to pay the withheld rates.
Commissioners were appointed in 2012. How this came about deserves some attention. An individual, who is (or was) a prominent farmer in Kaipara, approached the government (John Key, Prime Minister), and got himself appointed as a review authority. This is something that it is lawful to do. However, a review authority is required by law to be independent and unconflicted. The reviewer (Greg Gent) made it his business to persuade the elected councillors to fall on their sword, by requesting the government to replace them with commissioners. The terms of reference of the commissioners included the instruction to “undertake actions to enforce the payment of 2012/13 rates and any unpaid rates from previous years”. This is something that elected councils have power to do anyway, and it is unlawful for the terms of reference of any commission to authorise behaviour that is not specifically condoned by the Local Government Acts. There is a suspicion to this day that the council was “sacked” because of concern in the DIA and among the lenders that the council was either going to declare itself bankrupt (it technically was and might still be) or it was going to reach an accommodation with its ratepayers, or both. What needs to be stressed is that at no time while this was going on did the elected councillors or the ratepayers know that Gent was in effect a BNZ board member. He was Chair of BNZ Partners Northland, a conflict of interest that should beggar belief in a non-corrupt country. It should be made clear here that BNZ was one of the two major banks underwriting the EcoCare “project”. The other was ANZ.
This (enforcement) term of reference was unlawful. Section 258F of the LGA 2002 states that commissioners can only be appointed to resolve a significant problem of the local authority. They cannot be appointed as “enforcers”. That is especially so when the KDC had acknowledged that the rates in question were unlawful and the legal opinion from Jonathan Salter of Simpson Grierson of 2 February 2012 stated at paragraph 23:
In my opinion if such [High Court] proceedings were brought it is highly likely that all of the rates identified would be invalidated. In a real sense, the rates cannot be regarded as enforceable by the Council. Therefore the situation is serious and remedial action is required, assuming the Council is not disposed to refund the rates received.
The KDC Commissioners cancelled the proposed (formally adopted) focus group, introduced the oldest debt first policy, and refused to take any action in respect of the unlawful rates.
In 2014, following the passing of the Validation Act, the dispute should have been, and could have been, settled fairly. Ratepayers were prepared to pay the rates that had been withheld. This is evidenced by the payment of approximately $2 million in rates arrears by whistle-blowers, including the Rogans. It was we, the Rogans, who brought this payment of rates arrears about.
The KDC returned all the payments because the monies were paid on the basis of full and final settlement.
https://www.nzherald.co.nz/northern-advocate/news/article.cfm?c_id=1503450&objectid=11312681
The KDC wanted payment of penalties on the rates withheld. The Department of Internal Affairs (DIA) had insisted on the penalties being validated. However, the KDC Commissioners, and the promoting MP, Mike Sabin, had given an undertaking to the Select Committee that all penalties for the relevant period would be remitted.
It was on this understanding that Parliament enacted the Validation Act.
[See the comments of Phil Twyford, Nicky Wagner, Darien Fenton and Eugenie Sage at https://www.parliament.nz/en/pb/hansard-debates/rhr/document/50HansD_20131113_00000016/kaipara-district-council-validation-of-rates-and-other
The KDC Commissioners reneged on that undertaking to Parliament. That is what crated the impasse on penalties. Regardless of that, in 2014 we and other ratepayers had paid our arrears of rates to the KDC. The KDC could have kept those rates on the understanding that only the penalties were in dispute. In respect of the Rogans, the penalties owed were insignificant at that time.
The KDC Commissioners immediately launched legal proceedings against more than 100 ratepayers. https://www.stuff.co.nz/national/63426954/council-targets-500-rates-rebels The Rogan case was one of those proceedings.
No sensible commercial entity would have pursued its clients in the way the KDC did. The fact that so many law-abiding ratepayers were involved suggested that something was seriously wrong with the approach taken by the KDC. The problem was that the litigation was driven by the DIA through the Commissioners. The DIA was responsible for the unlawful terms of reference of the Commissioners, the intransigence on penalties, and the unmerited litigation against ratepayers, regardless of cost.
This vendetta-type attitude was continued with the appointment of the Crown Manager. The appointment of Peter Winder by the Cabinet was in breach of the Cabinet Manual because Crown appointees must be independent. Pete Winder was totally conflicted. As a KDC Commissioner he was responsible for many of the problems he was appointed to fix. He also had a personal animosity to those who had opposed him as a Commissioner, especially me as the chair of the MRRA. He was also directed by the DIA through the Minister.
The appointment and terms of reference of the Crown Manager were dogged with illegalities. He was withdrawn from his first appointment because his appointment and terms of reference were unlawful (identified by ratepayers). But that meant that all of his actions taken during his time in office were unlawful. He was reappointed some months later but there are still legal question marks over the validity of that re-appointment.
The terms of reference in the second appointment of the Crown Manager stated that his appointment would take into account certain Guiding Principles. They included: https://gazette.govt.nz/notice/id/2017-go2895
Ministerial assistance or intervention should have regard to:
what the local authority has done, is doing, or plans to do about the problem; and
the costs and benefits of assistance or intervention;
Ministerial assistance or intervention should be proportionate to:
the nature and magnitude of the problem;
its potential consequences; and
its duration to date and its likely duration if not addressed;
(Emphasis added)
The Crown Manager and the Minister failed to consider these principles at any time during the Crown Manager’s appointment. The initial problem relating to a mere two years of penalties was blown out of all proportion and developed into major litigation at a massive and unjustifiable cost to Kaipara ratepayers. At no stage did the Minister or the Crown Manager consider the Guiding Principles, especially in relations to the cost/benefit requirement for intervention.
At a Council meeting last year the Crown Manager presented his final report to the Council. When questioned by Councillor Larsen, he could not advise Council how much he had recovered from the Rogans and how much he had expended in legal costs pursuing them. Indeed, Winder seemed to be unaware of the Guiding Principles, which is perhaps unsurprising given that nobody was requiring him to heed them.
It should also be noted that at no stage did the KDC take any steps to query and stop the mounting costs of the litigation, not only against us, but against other ratepayers. The Commissioners and the DIA set the litigation in motion, and that was continued by the Crown Manager, but at any stage the elected Council could have stepped in, assessed the costs being incurred and sought an alternative solution to the issues. This was especially so given the cost/benefit principle in the Crown Manager’s terms of reference. Successive chief executives were fully aware of the mounting costs but did not raise the alarm bells or suggest that Council reconsider its approach. Even when the issue of the cost/benefit ratio was raised before the elected members when the Crown Manager gave his final report, the Mayor and elected members showed no interest in seeking out the figures.
It is clear that the KDC, at the behest of the KDC Commissioners and the Crown Manager, spent well in excess of $2 million in pursuing the Rogans through the courts to recover what was originally a few thousand dollars. That would never have happened if the KDC Commissioners had acted fairly and with reasonable commercial acumen, and if the Crown Manager and the Minister had complied with the Guiding Principles in the Crown Manager’s terms of reference. And, it has to be said, that when democracy was returned to Kaipara the Council could have stepped in and approached the Minister with its concerns about the spiralling costs and appropriateness of the Crown Manager’s intervention. Instead it buried its head in the sand.
The Council must also bear responsibility for the costs incurred in the litigation not only because of its intransigence in reaching a fair and practical settlement, but because the oldest debt first policy, unlawfully and unfairly, rapidly escalated the amount of penalties payable. Ratepayers like us had no alternative but to defend the legal action for recovery. We made numerous offers to settle over the years but the KDC refused to make any concessions.
Given the failure of the DIA-directed Crown Manager to comply with his terms of reference and instead to pursue a vendetta against ratepayers, irrespective of cost, it would seem fair and reasonable that the KDC should seek recompense from the Department and/or the Crown Manager for all of the legal costs incurred. And, perhaps, the Council should bear some of the blame itself.
PENALTIES
The payment of rates withheld during the time rates were withheld was never an issue. However the KDC made it an issue by refusing to accept any payment of arrears of rates only. It insisted on applying the oldest debt first “policy”.
We were not allowed by the KDC to pay current instalments of rates because of its unlawful insistence that any monies paid would be applied to the oldest debt.
As a result, the penalties on those rates accrued at an alarming rate because of the ten per cent instalment penalties and the further penalties of 10 per cent added at 6 monthly periods for seven years.
It was not until January 2019 that the KDC finally allowed us to pay the arrears of rates only. Subsequently it allowed us to pay current rates instalments as they fell due. We have no idea why, after seven years of enforcing the oldest debt first policy and preventing us from paying the rates, the KDC suddenly allowed us to make payment. If the KDC had acted in that way in 2014 then none of this litigation would have been necessary and the amount of penalties payable would be minimal. Was the policy applied so that the KDC could enrich itself with a wind-fall in penalties?
As stated above, despite all the litigation the courts have refused to consider any of the defences raised by us to challenge the charging of penalties. One of our defences was in respect of the unlawful oldest debt first policy. We understand that this policy has importance way beyond the Rogans’ case because the reputation of the KDC’s lawyers Simpson Grierson is very much dependent on the legality of that policy not being tested in court. However, it is quite clear that the policy is unlawful in that it overrides the provisions of the LGRA relating to payment of instalments and the adding of penalties.
The KDC has made a point of disputing the nature of the policy. The policy first appeared in rates invoices part way through the 2012/2013 rating year. It was not included in the rates assessment of that year. It was not included in the 2012/2022 LTP so it was not adopted by Council. That means that the policy had no legal authority for the years 2012 to 2015.
The policy was included in the 2015/2025 and 2018/2028 LTPs and in all rates assessments and rates invoices for all of those years. However, the wording in those rates assessments and rates invoices is different to the wording in the LTPs. The entry in the rating documents is:
If you do have rates arrears, any payment that you make towards your rates will be credited first towards the oldest amount due.
The reference is in respect of arrears and any payment to clear arrears. In the rating documents for 2012 to 2015 the policy was included under the heading PENALTIES. Subsequently it has been included under the heading Arrears.
The reference in the LTPs has two differences. First, it is included under Rating Information – Payment of Rates. This sets out the due dates for payment of instalments, details of penalties and how payment of instalments are to be made. It is clearly meant to relate to the payment of instalments only.
Second, the wording of the policy is significantly different. It states:
Any payments of rates due will be credited first to the oldest amounts due.
In other words, any payment of an instalment - which are the rates due on the due dates – will be credited to the oldest amount due. [This last “due” is incorrect. Rates arrears are not “due” they are in arrears, unpaid, or overdue.] This signifies that the policy is intended to prevent ratepayers from meeting their statutory obligation to pay rates instalments by their due dates.
The version of the policy in the LTPs is the only version adopted by the KDC. The version in the rating documents, under different headings and with significantly different wording, has no legal significance.
We tried to pay a rates instalment in 2014 following the rejection of the payment of all rates arrears. The KDC refunded that payment but added an instalment penalty to it and continued to add ten percent further penalties each 6 months for 5 years. That was duplicated on other occasions.
The legal situation is beyond challenge. The oldest debt first policy was not adopted until 2015. Any application of that policy prior to that date was unlawful. Any penalties added during that time, along with further penalties, were unlawful.
Penalties can only be added to rates if they are unpaid by their due date. If an instalment is paid by the due date the KDC cannot add an instalment penalty and further penalties. The fact that the KDC chose to refund the payment of the instalment for whatever reason is irrelevant; the instalment was paid, as required by law.
If we had been allowed to argue our case in court we would have argued that the KDC unlawfully prevented ratepayers from meeting their statutory obligation to pay their rates as they fell due. They should therefore be barred, through the doctrine of estoppel, from charging any penalties on those rates.
The unlawful application of the oldest debt first policy affects many other ratepayers who have been compelled to pay unlawful penalties.
RATES REMISSION OF PENALTIES ONLY
In respect of penalties the KDC has remitted penalties on a case by case basis, with some ratepayers being forced to pay the penalties, and some being let off. There does not appear to be any consistent approach to the process of who is forced to pay, and who gets leniency. However, there is a policy pertaining to Rates Remission on Penalties only.
We believe that this policy, set out in the in the LTP for 2018/2028, applies to our situation.
https://www.kaipara.govt.nz/uploads/ltp2018-2028/LTP%202018-2028%20Pt%202%20Final.pdf
Page 243
We set out the requirements of the policy in blue) followed by our details.
Objective
The objective of this scheme is to enable the Council to act fairly and reasonably in relation to penalties applied when rates have not been received by the due date.
We meet the objective as the Council is obliged to act fairly and reasonably in relation to penalties applied when rates have not been received by the due date.
We have set out our case under PENALTIES above. In summary, we have been prevented from paying arrears of rates and instalments as they fell due, because of the application of the oldest debt first policy.
That policy had no legal authority during the 2012 to 2015 years because it was not adopted by the elected members. Instalment penalties and further penalties for those years were unlawfully charged.
In subsequent years the policy in the rating documents was not the policy adopted by the elected members. Ratepayers were therefore misled as to the effect of the policy.
In addition, the policy in the LTPs is contrary to the provisions of the LGRA in that it purports to prevent ratepayers with arrears from paying rates instalments as they fall due.
Since the passing of the Validation Act we have tried to pay our arrears of rates and current instalments as they fell due but have been prevented from doing so. Where we paid an instalment by the due date, and the payment was subsequently refunded, we were charged an instalment penalty and further penalties. Those penalties were unlawful.
On most occasions we did not tender payment of rates instalments by the due date because the KDC advised that it would reject those payments. It is our view that the KDC acted unfairly and unlawfully in doing so and would be estopped from claiming penalties in such circumstances.
It also appears that the KDC obtained a legal opinion on the lawfulness of the policy in 2014 but has refused to disclose that opinion, even though it has used that opinion as the basis for charging ratepayers tens or even hundreds of thousands of dollars in penalties.
If the KDC considers that it acts with integrity and is transparent in its dealings with ratepayers, it should disclose the legal opinion which justifies the charging of those penalties. Accordingly, we are requesting under the provisions of LGOIMA, disclosure of that legal opinion.
There is a rider that needs to be added. The legal opinion was given in 2014 when the KDC had not formally adopted the policy in an LTP, so it is difficult to imagine how any legal opinion could maintain that the policy was lawful at that stage. In addition the actual policy adopted by the KDC is not the policy included in the rates assessment and rates invoices (on which the opinion was based) but the significantly different policy in the subsequent LTPs of 2015/2025 and 2018/2028.
The application of the oldest debt first policy has been completely ad hoc and arbitrary with variations between the treatment of different ratepayers and different applications of the policy at various times. There should have been a common policy with all ratepayers being treated fairly and equally.
Finally, the KDC needs to ask itself if it is fair that it consistently refused to accept from us payment of rates and current instalments from 2014 to 2019, but then changed its policy for no apparent reason, allowed us finally to pay our rates, but still demanded five years of penalties for the non-payment of those rates.
Criteria
1 Where the ratepayer meets the payment conditions agreed with the Council to resolve a rates arrears, the Council can remit any part of the penalties already incurred or yet to be incurred.
An arrangement was reached with the Chief Executive in January 2019 to accept payment of all rates arrears and to permit us to pay instalments as they fell due. Both we and the Council have adhered to that understanding. On that basis we ask that all penalties outstanding be remitted.
2 The penalties incurred on the first instalment of each financial year will be remitted if the ratepayer pays the total amount of rates due for the year, excluding the penalty on the first instalment, but including any arrears owing at the beginning of the financial year, by the second instalment due date.
We have paid all the rates for the current year and all arrears of rates for earlier years.
3 There are extenuating circumstances.
The extenuating circumstances are quite clear and set out above. If the Council had permitted us to pay our arrears of rates and instalments as they fell due, as it did in January 2019, there would be no penalties payable.
4 The ratepayer has paid after the penalty date, but has not received a rates penalty remission under this scheme within the past two years.
No penalty remission under the scheme has been received in the past two years.
Conditions
1 If the ratepayer stops paying rates then the Council is able to reinstate the penalties.
Agreed.
2 The remission will apply from the beginning of the rating period in which the application is approved and may not necessarily be backdated to prior years.
We seek remission of all instalment penalties outstanding and all further penalties outstanding for prior years for the reasons stated above.
Wider context
Finally, to put this issue into context, we believe that Council should consider some of the matters of huge cost to the KDC that have been swept under the carpet.
There was the issue of chief executive Jack McKerchar who was responsible for the EcoCare debacle which cost the ratepayers of the district tens of millions of dollars. He was rewarded with a handsome golden handshake of $240,000 when he quit. He was sued by the KDC Commissioners for negligence. The action failed, but the Commissioners were criticised by the Employment Court for not pursuing the case wholeheartedly.
The KDC Commissioners delayed suing the Office of the Auditor General for its blatant negligence during the EcoCare debacle, so that the limitation period expired. Tens of millions of dollars were lost by that delay.
The Auditor-General responded in kind by refusing to take action under the LGA 2002 against the elected members for their part in the secret and unlawful extension of the EcoCare project.
The KDC Commissioners declined to take action against Beca, the consultant to the KDC which was largely responsible for the mismanagement of the EcoCare project. Another Council, with similar issues relating to a sewerage plant, sued Beca and obtained a confidential settlement.
Just recently, chief executive Graham Sibery was pressured to quit and left with his pockets bulging with $297,994 for two months work. Of that amount $241,866, was stated to be salary. His salary for those two months would have been about $40,000. There were also other small amounts for other employment benefits. But that leaves in excess of $200,000 ostensibly for salary. The KDC refused to disclose the reasons for the apparent anomaly even though the OAG guidelines state that such discrepancies should be explained to ratepayers. The obvious explanation is that Sibery negotiated a very favourable employment contract with his friend, KDC Commissioner, and Crown Manager, Peter Winder.
In hindsight, the KDC Commissioners and Peter Winder have cost the KDC and its ratepayers very dearly. Yet, it seems that they will never be held to account, and the Rogans will be sacrificed on their altar.
In summary we request that council:
Reduce the amount it is demanding to something fair and reasonable
Provide us with a GST invoice for the amount that it is demanding, identifying any or all amounts that contain a GST component.
Recognise that all the rates arrears were paid in 2014 but were returned by the Commissioners. It was not OUR decision not to accept the payments offered, we are therefore not accountable for the consequences.
We went to court (District Court) as a test case. This saved the council thousands and thousands of dollars in having to bring proceedings against hundreds of others. It is obscenely unfair that we have been burdened with all the costs of that.
The fact that the council’s lawyers completely screwed up their statement of claim is not our fault, and it is not our fault that the test case circumstances were damaged beyond recognition by the incompetence of a District Court judge and the council’s lawyers.
We ask you to take all the above into account and we look forward to hearing from you with a more equitable offer.
Bruce & Heather Rogan
May 2020
To read more about the Mangawhai VS Kaipara District Council saga, go to www.kaiparaconcerns.co.nz
and the history of the case from the Kaipara District Council's own website :
From the Office of the Auditor General ( who neglected to perform due diligence on the proposed loans )
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20200219 :
The Supreme Court Refuses to hear Mangawhai Ratepayers appeal to overturn the decision of the Court of Appeal in their case against the Northland Regional and Kaipara District Councils.
JUDGMENT OF THE COURT
A The application for an extension of time to apply for leave
to appeal is dismissed.
B The applicants must pay the respondents costs of $4,500 plus usual disbursements. _______________
20200211 : Napier City Council chief executive Wayne Jack reported to be 'negotiating exit package close to $1m. NZ Herald
20200205 Supreme Court preliminary hearing - Mangawhai Ratepayers application to appeal.
7th of October 2019 :
and for help from people everywhere in New Zealand,
because this is a national issue,
touching the lives and civil rights of everyone who lives in Aotearoa.
19th of July 2019 : Should Mangawhai Ratepayers go to the Supreme Court ?
21st of May 2019 : A Plea for Help !
Mangawhai Ratepayers and Residents' Chairman hit with $175,000 costs for taking the Northland Regional Council to task over the legality of its rating process.
Can you or your organisation help ?
4th of December 2018 : Court of Appeal dismisses Rogans' ( Mangawhai Ratepayers and Residents' Association) right to appeal and charges
$175,000 court cost against the appellants.
8th of November 2018 : Mangawhai Loses at the Supreme Court.