Community development committee meeting (26 March)

The community development committee meeting was held on 26 March 2015. I provided my apologies for being unable to attend this meeting.

The agenda included: (1) recent activities presentation from the Murchison recreation centre, (2) dark sky designation at Wai-iti recreation reserve, (3) reallocation of funding for Motueka Goodman Park lights project from Motueka Sports field project, (4) Notice of motion regarding Tapu bach remaining on public esplanande, (5) chair’s report, (6) manager’s report, (7) reserves and facilities report, and (8) strategic policy report.

A confidential session excluding the public was also held in relation to the Murchison reserves and facilities contract, and Rainbow sports club’s remission of loan repayment application.

For the purposes of this post I will focus on the major items of interest for me.

Dark sky designation – Wai-iti reserve and Tunnicliff forrest

This is a great initiative and I would endorse a dark sky designation being added to the Moutre\Waimea management plan when it is next reviewed.

The aim of a dark sky designation is to protect the night sky from intensive artificial light, thereby preserving the ability to clearly view the night sky. Both the Wai-iti reserve and Tunnicliff forrest do not have any artificial lights and would probably qualify as a “silver” level dark sky location, using international dark sky criteria (see page 15 of the agenda for more details). On this basis both areas would be prime candidates for such a designation.

In my opinion, any ongoing light measurement work (and the associated costs) required to meet international qualification would have to be undertaken by private interest groups. Council would only be preserving the area in the management plan for the opportunity to qualify, nothing more.

While access to the Wai-iti reserve at night does not provide any major problems, accessing forestry land at night might provide a few compliance headaches under the Health and Safety Act. However, given forestry work does not occur at night, and provided forestry areas being worked on during the day are excluded from access at night, I cannot see to many problems. Nevertheless, in my opinion, should access to forestry land prove complex or expensive in terms of compliance with government regulations, then council should not pursue allowing access at night.

Re-allocation of funding

In my opinion, this is a pretty straight forward issue of the community re-setting spending priorities. At issue is the current allocation of funds towards the purchase of new sports fields in Motueka, and a request by the community board to re-allocate $65,000 of those funds to another purpose – namely, lights for for Goodman Park in the 2014-15 financial year.

As there are no overall financial impacts for council, other than shuffling funds around (from one project to another), I fully support the community board in doing its job of reflecting what the community values and setting the spending priorities of the community.

Tapu bach reconsidered

This issue was brought before the committee under a special motion by the mayor.

The motion asked the committee to revisit an earlier decision not to exercise a discretion in favour of the applicant (Mr Krammer). In that earlier decision, the committee declined Mr Krammer’s application for waiver from having to remove his holiday bach from esplanade land by 31 March 2014. Mr Krammer sought to keep his privately owned bach on public land until his death.

Importantly, before this motion was brought before the committee, several councillors had approached the mayor asking that the policy document be amended, so that life interests for license holders could be included, as an alternative period of time to vacate private buildings from the public esplanade land. The mayor declined this opportunity, instead favouring this motion and forcing councillors to revisit an earlier decision of council not to exercise a discretionary power.

In my opinion, refusing to amend the policy document, in favour of re-examining the exercise of a discretionary power, was a poor decision. First, it tried to re-litigate a decision already made by council, after lengthy consideration of all the facts. And in the face of a workable alternative solution (amending the policy document). Secondly, no new facts were presented in the special motion that invited reconsideration of the council’s decision to not exercise the discretionary power. Thirdly, the motion appeared to champion an outcome that the mayor had himself blocked by alternative means – namely amending the policy document to allow for a license holder life interest. Whether the decision to put forward the special motion was politically motivated, is for the reader to decide.

As this decision has received a lot of public interest in parts of the district, I think its important that the constraints on councillors exercising discretionary powers are discussed in some detail. One can then decide if the right process was followed to achieve the desired outcome.

Policy background

By way of some brief background, the council has had a formal policy (since 2004, and updated in 2011) called the “Policy for Private Structures on Esplanade Reserves”. That policy permits privately owned buildings to remain on public esplanade reserves by way of a license to occupy. From 2004 to 2011, the license to occupy had no expiry date and was only provided (and withdrawn) at the grace of council. This codified a long standing practice.

Before 2004, there was no formal policy. Rather, permission to occupy esplanade reserve was recorded by way of council minutes. For example, in 1984, the Waimea County Council recorded in its minutes that the council had allowed two baches, one of which was the Krammer’s bach, to remain on the newly created Tapu Bay esplanade reserve at the pleasure of the Council.

In 2011, the council decided that greater certainty for license holders (and the public) was required, and replaced the open grace period with a sunset date, being “31 March 2014”. After 31 March 2014, all privately owned buildings had to be removed from the esplanade, unless the council exercised a discretion to extend that date.

The 2011 policy document states “the term of occupancy is to expire on 31 March 2014 unless otherwise approved by the council”. The words “unless otherwise approved by council” provides the council a discretion to extend the period of occupancy beyond 31 March 2014.

Interestingly, the proposed 2011 changes to the policy also considered other amendments, including providing a longer period of time to vacate the esplanade, based on the life of the license holder (ie a life interest). However, this option appears to have not been recommended, or accepted, in the final policy document.

Importantly, the 2011 policy document provides the council a discretion to approve a longer period of occupation. However, no guidance is provided within the policy about how that discretion is to be exercised and for what period of time. In the absence of any guidance, the council was left to exercise its discretionary powers according to normal practice.

Guidance for exercising a discretionary power

The Ombudsman’s Office provides some useful guidance for council’s exercising discretionary powers (see http://www.ombudsman.parliament.nz/search?q=Volume+10%2C+Issue+2.++June+2004). That guidance is reproduced below.

Importantly, a public body (like council) does not have unfettered discretionary power. This means, a council cannot do whatever it likes (or wants to do). A discretion must not be exercised in a manner that might generate uncertainty, or conveys a perception of bias, or appears arbitrary. It must consider, and be based on, relevant considerations, not irrelevant considerations. And it must be exercised consistently (from case to case), unless the merits of any particular case justify a different approach.

Where a public body (like council) ignores valid considerations, the exercise of a discretionary power can be challenged by the public, and potentially overturned on the basis that the decision is “ultra vires” (which means council has acted beyond or outside its powers of authority).

The Ombudsman’s office states (in Volume 10, Issue (2 June 2004)):

REVIEWING THE EXERCISE OF DISCRETIONARY POWERS

A significant number of the complaints investigated under the Ombudsmen Act 1975 relate to decisions or recommendations by public sector officials exercising discretionary powers. Complaints about the way in which discretionary powers are exercised can arise in many contexts within central government, local government, statutory boards, health, educational and other public sector organisations.

The starting point of a complaint is the complainant’s dissatisfaction with the outcome of a decision-making process. However, an Ombudsman’s investigation of whether the decision or recommendation is reasonable invariably focuses on the process by which the decision or recommendation was reached. In the context of public sector officials exercising discretionary powers, the process issues are not always clear to either the complainants or the public sector officials concerned.

The following summary incorporates in large part a very helpful fact sheet published by the NSW Ombudsman’s office, which has kindly consented to its reproduction in this article.

What are discretionary powers?

Discretionary powers are permissive, not mandatory. They are powers conferred either directly by enactment or by delegation which do not impose a duty on the decision-maker to exercise them or to exercise them in a particular way. Within certain constraints, decision-makers are able to choose whether and/or how to exercise discretionary powers.

How must they be exercised?

Public sector officials do not have unfettered discretionary power. They must exercise discretionary powers in accordance with any applicable legal requirements, reasonably, impartially and avoiding oppression, injustice or improper discrimination.

In general, public sector agencies should adopt policies and procedures which set out the general approach to be followed in at least each major area of activity for which they are responsible. Agencies should try to ensure that their powers are exercised consistently from case to case, unless the merits of any particular case justify a different approach.

Relevant administrative law principles

In exercising discretionary powers, various principles of administrative law require public officials to:

  • use discretionary powers in good faith and for a proper purpose (i.e. honestly and only within the scope and purpose for which the powers are given);
  • base their decision on logically probative material (i.e. logical reasons, information that proves the issues in question, relevant and reliable evidence);
  • consider only relevant considerations and not consider irrelevant considerations;
  • give adequate weight to a matter of great importance but not give excessive weight to a relevant factor of no great importance;
  • exercise their discretion independently and not act under the dictation or at the behest of any third person or body;
  • give proper, genuine and realistic consideration to the merits of the particular case, and not apply policy inflexibly; and
  • observe the basic rules of procedural fairness (i.e. natural justice).

Other principles of administrative law preclude public officials from:

  • making decisions in matters in which they have an actual or reasonably perceived conflict of interest;
  • improperly fettering their own discretion (or that of future decision-makers) by, for example, adopting a policy that prescribes decision-making in certain circumstances;
  • exercising a discretion in a way that is so unreasonable that no reasonable person would have exercised the power in that way;
  • exercising a discretionary power in such a way that the result is uncertain;
  • acting in a way that is biased or conveys a reasonable perception of bias;
  • making decisions that are arbitrary, vague or fanciful;
  • refusing to exercise a discretionary power in circumstances where the decision-maker is under a duty to do so; or
  • unreasonably delaying the making of a decision that the decision-maker is under a duty to make.

It would be a serious matter for public officials to ignore valid advice or valid considerations, particularly for the purposes of avoiding discomfort or embarrassment on the part of the government, agency or decision-maker.

Policies and practices to guide the exercise of discretionary power

Not every situation demands a policy. Policies are not a panacea capable of properly addressing all circumstances. However, policies are an important means of guiding decision-makers in exercising discretionary powers appropriately, consistently and fairly. Policies should include an objective and the criteria to be used in decision-making to help ensure that:

  • all relevant legal requirements are complied with;
  • all relevant factors are considered;
  • there is consistency in decision-making; and
  • the decision-making process is transparent and accountable.

As a matter of principle, it would be unacceptable for an agency to adopt and implement a policy that adversely affects, or could adversely affect, the rights or interests of any member of the public where the existence or content of the policy is kept secret or the policy document is not available on request.

Policies adopted by agencies should be freely available to relevant staff and members of the public. In this regard, s.22 of the OIA (s.21 LGOIMA) provides that every person has a right to request and be given access to any document (including a manual) held by Ministers or departments or organisations or local authorities, which contains policies, principles, rules or guidelines under which decisions or recommendations affecting any person or group of persons (in their personal capacity) are made.

Government circulars, memoranda and codes of practice

There is usually no legally enforceable obligation to comply with government circulars, memoranda and relevant industry or generally accepted codes of practice. However, in the interests of fairness, equity and consistency, decision-makers should have regard to them and comply with their terms unless there are justifiable, and preferably documented, reasons for taking another course of action.

Implementing policies and procedures consistently

Policies should not be applied rigidly without proper consideration of the particular circumstances and merits of each individual case. There will be occasions where there are justifiable grounds for not following policies. Where an agency, with good and preferably documented reasons, departs from a consistent application of policy, this does not create a precedent which binds the agency. Such decisions are relevant and important considerations, but are not binding. Conversely, where an agency frequently departs from or ignores a policy, the policy would seem to have little weight or relevance and would need review.

Unless there is provision for both:

  • adequate ongoing training for staff in how to apply policies, and
  • regular review of policies to update and remedy any deficiencies which are identified through specific cases, then implementation of policies and procedures may not be as consistent and effective as hoped for.

The Australian Ombudsman’s Office (see http://www.ombudsman.wa.gov.au/Publications/Documents/guidelines/Exercise-of-discretion-in-admin-decision-making.pdf) states:

How should decision-makers exercise discretionary powers?

Decision-makers must use discretionary powers in good faith and for a proper, intended and authorised purpose. Decision-makers must not act outside of their powers. No decision-maker has an unfettered discretionary decision-making power.

It is not sufficient to exercise discretion and approve an application simply because it seems the right thing to do. When exercising discretion, decision-makers need to act reasonably and impartially. They must not handle matters in which they have an actual or reasonably perceived conflict of interest.

It is important to apply the values that the legislation promotes, professional values and the values of the agency, not personal values.

In exercising discretionary powers, decision-makers should have regard to any specific requirements as well as satisfy general administrative law requirements. Some of the general principles relevant to the exercise of discretion are:

  • Acting in good faith and for a proper purpose;
  • Complying with legislative procedures;
  • Considering only relevant considerations and ignoring irrelevant ones;
  • Acting reasonably and on reasonable grounds;
  • Making decisions based on supporting evidence;
  • Giving adequate weight to a matter of great importance but not giving excessive weight to a matter of no great importance;
  • Giving proper consideration to the merits of the case;
  • Providing the person affected by the decision with procedural fairness; and
  • Exercising the discretion independently and not under the dictation of a third person or body.

A failure to act within the power provided or to comply with general administrative law principles can result in a review and overturning of a decision.

Application to the facts

In my opinion, (and again applying the guidance of the Ombudsman’s Office to the facts before council), it would appear that the committee could not validly exercise the discretion, provided for in the policy. Basically, the applicant (Mr Krammer) had not provided enough relevant evidence to get council across the line in exercising its discretionary powers validly.

The evidence to date had been that:

  • the applicant was a former councillor and well known person in the community.
  • the applicant had been granted permission to occupy the esplanade since 1984, when the land was made into a public esplanade reserve.
  • the applicant had known the removal of the bach could be required. This knowledge had been held for some time (including notice of a sunset date of “31 March 2014”, in 2011), so that he had had ample time to prepare for this eventuality.
  • the applicant had not donated the esplanade land to the council as a public esplanade or reserve. In the past, council had permitted donor’s of esplanade land to keep privately owned buildings on the land until their death.
  • the bach was built in 1894 and had occupied the land since the 1930’s, but did not have any heritage protection and was unlikely to receive any. Nor was there any historic value in keeping the bach in its current location.
  • the bach was not his home. The applicant’s home (where he typically lived) was located in another part of the district.
  • there were no medical conditions that required the holiday bach’s continued use by him. And none were raised by the applicant.
  • other bach’s (including one at Tapu Bay) had already been removed under similar circumstances to the applicant’s.

There appeared to have been no other evidence of hardship or any other facts that might have shown compassionate grounds to exercise the discretion. The only other factor was public opinion.

Public opinion had developed after the original decision to not exercise the discretion was made. Several letters of support for Mr Krammer had been received by council (together with letters supporting the council’s decision). A website petitioning the council to reverse its decision had also received many comments of support (see https://www.change.org/p/the-tasman-district-council-save-john-krammer-s-bach).

Councillors needed to consider whether public opinion was a relevant consideration, or not, in re-exercising the discretion. And whether it outweighed all the other relevant considerations. Keeping in mind the Ombudsman’s advice, that ignoring valid considerations, in order to avoid political discomfort or embarrassment, was not a valid exercise of a discretionary power.

Leaving aside whether public opinion was a valid consideration (which I do not think it could be, based on the Ombudsman’s observations above), in my opinion public opinion appeared to be mixed on the issue. Letters to council on the topic were divided in opinion, and comments left on the website petition appeared to mistakenly suggest that the bach was Mr Krammer’s home.

Quite rightly there was an outcry from supporters on the website (many from outside the Tasman community, and even NZ), denouncing the council’s decision to push Mr Krammer out of his home. Had it been his home, I would probably have joined the outcry. But it was not his home. Unfortunately these mistaken comments from some supporters on the website suggesting it was his home, appeared to flavour many other subsequent comments of support. This confusion made it unclear if there would have still been public support for the applicant, had it been known that it was not his home.

Clearly, if it had been his home, council probably would have found compassionate grounds to exercise the discretion. If not on the basis of consistency. This is because there had been an earlier decision of council to allow a person to keep their “home” on esplanade land until their death. But alas, this was not such a case, as the bach was not the applicant’s home.

I should add at this point, that in my opinion, the age of Mr Krammer (who was elderly) could not be a relevant consideration. This is because the Bill of Rights Act prohibits discrimination on the basis of age. Therefore, the applicants age alone, could not be something that could sway council’s consideration of exercising its discretionary power. There had to be something more. For example, a relevant consideration might have been a terminal disease or health concern (that might arise from age) that would provide compassionate grounds for the exercise of the discretion.

In my opinion, if the council exercised its discretion, based on an absence of any relevant considerations (other than public opinion), then it was not only setting a bad precedent in exercising its discretionary powers, but was probably exercising them invalidly and contrary to the principles outlined above from the Ombudsman’s office.

I suggest above that it would be a bad precedent for exercising discretionary powers, because it would effectively be setting the bar very low (ie, all you need is public opinion and not much else), and could potentially open up a whole can of worms for the exercising of discretionary powers in other policy documents (and there enforcement).

As I had stated in the original summary of my decision:

In my opinion, the policy was known to the community for some time and had already been widely applied. In some instances, people had already removed homes (where they had lived) from esplanade reserves.

In this case, the owner had not donated the reserve land on which their bach was located, and did not live in the bach. Rather, the bach was a family holiday home. While the owner may have donated their time and energy to community service, or was elderly, these facts were insufficient to award an exception on “compassionate” grounds. To do so would have set a very low bar (if any).

On the basis of fairness and consistency, and in the absence of justifiable compassionate grounds, the council had to apply the policy without bias or favour. The council had to be seen to be objective and neutral in its decision making. The rule of law had to be applied. To do otherwise could set a dangerous precedent for the application of other policies and rules.

On the day, three councillors (Crs Edgar, Bryant and Canton) did not support the council re-exercising the discretion. They believed the discretion could not be validly exercised based on the facts before them. I stand with them on that decision.

I also believe that councillors should have supported a change to the policy document, that would have brought about the same outcome, rather than supporting the special motion.

Its about following the right process, and not fudging it.

Delegated authority

Interestingly, there may well be a question over whether the committee was delegated the power to exercise the discretionary power of council provided for in the policy document. In the opinion of staff, the delegated authority (contained in the delegations register) to “implement” the policy, imports the ability to exercise the councils discretionary power.

A contrary argument is that the council’s discretionary power is something outside the normal implementation of a policy and was expressly reserved for council in the policy. Had this discretionary power been delegated to the committee, then arguably the delegations register would have used the words “all of council’s powers”, rather than a more contained selection of powers, such as “implementation” or “review”.

It might be suggested that this issue is rather academic, given all councillors sit on both the committee and the full council. However, this ignores the fact that the committee is a separate legal entity with the ability to only make recommendations to council, unless given powers by council to do otherwise. As with all questions of public law and administration, proper process is critical.

An alternative solution

I believe the better approach was for council to address the wording of the policy. And I suggested this, at the end of my original summary of the decision. Unfortunately, the mayor did not see it this way, and forced the motion to re-examine the exercising of the discretion on the committee.

In my mind, the policy was overly restrictive and could have easily grand-parented the use of buildings and their removal on the basis of the license holders life-time, or a fixed period (ie 31 March 2014), whatever was longer. In fact, grand-parenting was considered an option when the policy was reviewed in 2011. Why council opted for only a fixed time (ie, 31 March 2014) to vacate the esplanade is unclear, but I could not see why there was a need for such urgency or a lack of flexibility by allowing grandparenting?

In my opinion, given the discretion could not be validly exercised without undermining the credible and valid exercising of the discretionary powers of council, the better approach of council was to fix the policy by expressly allowing a license holder a life interest. Changing the policy was not only more transparent and fairer for everyone (benefiting everyone, not just Mr Krammer), but it also prevented the council from having to invalidly exercise a discretionary power to bring about the same result.

Unfortunately, the mayor declined to unify the council by amending the policy, and instead pursued a divisive approach of trying to fudge the exercising of a discretionary power. Given the mayor has on a number of earlier occasions reinforced his desire for the council to act collaboratively and speak as one voice, I was rather surprised that he would not only revisit the exercising of the discretion (surely the council had already spoken on the issue), but refused to amend the policy, when he had the opportunity, and the unanimous support of all councillors, in getting to the same result.

Manager’s report

The manager’s report touched on a number of issues including

  • Golden Bay recreation facility: A project manager will be appointed and architects have already indicated the project will need to be re-scoped to fit to budget, before they can proceed to detailed designs.
  • Recent events that council staff participated in included: (1) choice children’s day (400 people participated) held at Rabbit island, (2) Moturoa Mission (164 students from 18 Tasman and Nelson enviro-schools held at Rabbit Island), (3) waste minimisation education campaign, (4) enviro-schools regional coordinator hui, (5) bikewise campaign held during world cricket.
  • Publications: The first of the revised Boredom Busters holiday listing guide has been developed and published, providing households with essential Easter holiday period information (see http://www.tasman.govt.nz/recreation/events/boredom-busters-holiday-programmes).
  • Online developments: Development of the new internal intranet is advancing steadily towards completion within the next 6 weeks. This should improve staff access to information.
  • Libraries: The range and number of e-books and e-audio titles continue to increase. In partnership with Marlborough District Libraries, a new range of e-books from Bolinda Digital was added. Libraries Manager, Glennis Coote, has been appointed to the board of the Kōtui library consortium (comprising 24 councils).
  • Acquatic centre: Patronage was 19,650 for January 2015 (23,872 in January 2014). The fitness centre members for the month were 5,081.

Reserves and facilities

Staff provided an update on projects. The Richmond projects are outlined below. Projects for Moutre, Motueka, and Takaka wards are outlined in the agenda (at pages 54 and 55).

  • Saxton field: (1) Velodrome. Opus has completed the design work and the tender has now been put out to selected contractors. (2) Land development, Champion Green. The design work is completed for tendering.
  • Avery Oval (Saxton field): Toilets/changing rooms. Tenders have gone out for the construction of the toilets, and if the budget allows, changing rooms as well.
  • Meadow Lane/Forget Me Not Lane walkway: Staff are investigating options for the bridge.
  • Washbourn Gardens: The Currie Pavilion. Keep Richmond Beautiful is going to repaint the pavilion.
  • Chelsea Ave Reserve: Playground upgrade. Work in progress. I really question whether any upgrade is required for this park. In my opinion, its upgrade work for the sake of upgrading.

I wonder whether council should be looking to consolidate a number of pocket parks that are located within close proximity to larger parks. Maintenance (and frequent upgrading of equipment) of so many pocket parks is expensive. Consolidating pocket playgrounds would reduce maintenance costs and allow better infrastructural investment in larger parks. For example, rather than have two pocket parks surrounding Ben Cooper park (eg Norm Large park and Chelsea avenue park), perhaps Ben Cooper could have a large children’s playground facility located at one of its ends?

Many of the pocket parks were provided by developers to offset development levies and were created when the larger parks were not as accessible to residents as they are now. For example, Norm large park was created when access to Ben Cooper park could only be made from Wensley Road. The subsequent residential development around Ben Cooper has now made that park more accessible and a very short bike ride (2 min) from Norm Large park.

Strategic policy

The planned work programme for the strategic policy team through to the end of December 2015 includes: (1) the long term plan, (2) activity management plans, (3) annual plan, (4) residents survey, (5) reserves and parks planning, (6) bylaw and policies review, (7) risk management issues, and (8) other strategic challenges (including: partnerships, treaty settlements, growth, natural hazards, document management systems, ideas exchanges, and water augmentation).

Agenda and minutes

The agenda, special motion, and minutes for the meeting are located at: http://www.tasman.govt.nz/council/council-meetings/standing-committees-meetings/community-services-committee-meetings/?path=/EDMS/Public/Meetings/CommunityServicesCommittee/2015/2015-03-26.

 

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