Part 13: How was the community kept informed?
13.1
While the events summarised in Parts 7 to 12 were taking place, KDC and its contractors were also communicating regularly with Mangawhai and Kaipara ratepayers about what was happening. In this Part, we discuss:
- the formal consultation KDC carried out between 2003 and 2007;
- communication on the important decisions discussed in this Part; and
- our comments.
13.2
In summary, we conclude that:
- Until mid-2006, KDC kept the community informed on the project and put a lot of effort into this.
- After then, its communication was much poorer, and it failed to communicate important decisions that affected the overall cost of the project, such as the purchase of the farm and the increase in the scope of the works.
13.3
We have not commented on whether KDC's consultation with the community complies with the Local Government Act 2002, as this matter is before the High Court.
Formal consultation carried out by Kaipara District Council
13.4
Between 2003 and 2007, KDC carried out several formal consultation processes under the Local Government Act 2002. As well as its regular consultation about the draft annual plan each year and the draft LTCCP every three years, it also consulted formally on several Statements of Proposal relating specifically to the wastewater project. These were:
- Mangawhai EcoCare Project, in 2003;
- Development Contributions Policy, in 2005;
- Development and Financial Contributions Policy, in 2006, as part of the consultation on the 2006 LTCCP; and
- Mangawhai EcoCare, in 2006, as part of the consultation on the 2006 LTCCP.
13.5
The Northland Regional Council (NRC) publicly notified the application for resource consents and notice of requirement for the designation, and the community was able to make submissions on them.
The July 2003 Statement of Proposal on the Mangawhai EcoCare Project
13.6
The draft Statement of Proposal was provided to the Council at its meeting on 23 July 2003, where it was adopted for public consultation. We have already discussed what was in the Statement of Proposal in Part 8.
13.7
The Council held an open day in Mangawhai on 9 August 2003. This provided an opportunity for the community to ask questions. The consultation period concluded on 1 September 2003. The Council received 127 submissions, and 29 submitters requested an oral hearing. These were heard by the Hearings Committee on 9 and 10 September.
13.8
After the oral hearings, the Hearings Committee appointed a working group to analyse the submissions and report back to the committee. The working group, consisting of councillors, an EPS representative, and a KDC officer, reported back to the Hearings Committee at a public workshop held in Mangawhai on 8 October 2003. KDC files included an update about the wastewater project that was to be provided to the community shortly after that meeting explaining the Hearing Committee's recommendations, which would be put to the Council at its next meeting.
13.9
The Hearings Committee then presented its recommendations to the Council on 22 October 2003. It recommended that the project proceed subject to several amendments. An article in an EcoCare Newsletter distributed by KDC in November 2003 provided information about the changes to the scheme the Council had adopted because of the consultation process.
2005 Statement of Proposal on a Development Contributions Policy
13.10
As discussed in Part 8, KDC's Development Contributions Policy had come into effect from 1 July 2004. Soon afterwards, several problems in the way the policy was interpreted came to light. At a meeting on 23 March 2005, KDC officers recommended changes to the policy. The Council agreed with the recommendation and approved a draft Statement of Proposal for public consultation.
13.11
The consultation process was publicly notified in the Northern Advocate on 24 March and the Mangawhai Memo on 31 March 2005. The Statement of Proposal was sent to all potentially affected ratepayers with a covering letter.
13.12
Submissions opened on 30 March 2005 and closed on 2 May 2005. Hearings took place on 11 May 2005. As we set out in Part 8, some submitters identified other problems with the policy. At its August 2005 meeting, the Council resolved to suspend the application of the policy pending the adoption of a revised policy.
2006 Statement of Proposal on a Development and Financial Contributions Policy
13.13
A new Development and Financial Contributions Policy was drafted. The law firm Brookfields reviewed this policy before the Council reviewed it in April 2006. At that meeting, the Council adopted the policy for inclusion in the 2006-16 draft LTCCP for consultation. The Council adopted the policy in June 2006.
February 2006 Statement of Proposal on the Mangawhai EcoCare Project
13.14
As we discussed in Part 11, the Council issued a second Statement of Proposal on the scheme for consultation as part of its 2006 LTCCP process.
13.15
Before the draft Statement of Proposal was adopted for consultation, two public forums were held to seek public input. These were held in Dargaville and Mangawhai on 4 and 14 October 2005.
13.16
The draft LTCCP, which included the Statement of Proposal, was advertised on 8, 9, and 15 March, and a letter was sent to every ratepayer on 21 March 2006. Public meetings were held on 27, 29, and 31 March and 3 April 2006. Consultation closed on 21 April 2006. The Council received 271 submissions on the draft LTCCP and heard from 101 submitters. Hearings were conducted on 8, 9, and 10 May.
13.17
The Council held a special meeting on 22 May 2006 to consider the submissions and resolved that staff should amend the LTCCP in keeping with the decisions resulting from the deliberations. KDC staff would present a revised copy of the draft to a special Council meeting to be held on 7 June 2006. At the meeting on 7 June, the Council adopted its LTCCP with some amendments.
13.18
KDC held an open day in Mangawhai on 28 July 2006. Aerial photographic plans were on display. EarthTech was in attendance, as well as councillors, KDC officers, and the Community Liaison Officer. Copies of the adopted Statement of Proposal were available, as well as copies of the information booklet Information for Landowners & Residents.
Notice of requirement and application for resource consents
13.19
Beca prepared a Consents Management Plan to guide prospective tenderers through the consenting requirements. That plan set out that resource consents would be required for the wastewater scheme. It also stated that one of the strategies to minimise consenting risk was keeping the community informed and involved in selecting the site and disposal options.
13.20
In September 2006, KDC and EarthTech filed an application for 13 resource consents with the NRC. KDC also required a designation for the scheme. Under the designation process in the Resource Management Act 1991, KDC would normally be the decision-maker on the notice of requirement. The Council delegated its decision-making powers on the notice of requirement to the NRC's Hearings Committee, which would also decide the resource consent applications. This was done to manage KDC's conflict of interest, which arose because it was both the applicant and decision-maker on the notice of requirement.
13.21
The consents applied for, and the proposed designation, were fully notified in accordance with section 93(2) of the Resource Management Act 1991. This included:
- newspaper advertisements;
- individual letters to owners of properties in the area potentially affected by the proposal, including those within the scheme's sewerage district, properties along the pipeline routes, properties adjacent to the irrigation area, and properties adjacent to the Hakaru River; and
- letters to iwi or their representatives, oyster farmers in the upper Kaipara Harbour, the Department of Conservation, Forest and Bird, Fonterra, Telecom, and Transit New Zealand.
13.22
The Council also advertised the submission process in the Mangawhai Memo and encouraged community members to submit.
13.23
The Hearings Committee heard submissions on the applications and notice of requirement. A total of 61 submissions were received, with 36 submitters also providing oral submissions. Hearings took place in Mangawhai on 8 February 2007. The NRC's Hearings Committee granted the resource consents and confirmed the notice of requirement in March 2007. Three appeals were filed with the Environment Court. However, they were resolved through mediation. The Project Deed then became operative from 28 August 2007.
Communication on important decisions
Change from a BOOT to DBFO scheme
13.24
As set out in Part 7, the Local Government Act 2002 meant that KDC could not continue with a BOOT scheme. The PSC met to discuss the implications of this in January 2003 and then reported to the Council with its recommendations. The Council implicitly resolved to proceed with the project as a DBFO scheme and agreed that further consultation on the proposed funding arrangements should be carried out.
13.25
KDC files contained an update about the wastewater project that was to be provided to the community in February 2003, advising the community of the changes in legislation and the Council's decision to continue with the project, subject to some changes in approach. The Mayor also distributed an open letter to the Mangawhai community on 21 February 2003 providing information about the changes.
13.26
The Community Liaison Group received an update from an EPS staff member and KDC's Chief Executive on the Council's decision. Group members confirmed that the community wished to be kept up to date in simple and meaningful terms. It was agreed that an article for the Mangawhai Memo and an EcoCare Newsletter would be prepared for the community's consideration. These were finalised and distributed to the community before the next Community Liaison Group meeting.
Decision to rescind preferred proponent status
13.27
The community was advised through a press release in January 2005 that HWE, the parent company for Simon Engineering, had been undergoing a refinancing programme and that a potential new investor was carrying out a due diligence process. KDC advised that this would result in delays in signing the Project Deed, but it remained confident that the process would be successfully completed.
13.28
However, HWE was placed into voluntary administration on 31 January 2005. The Council called an extraordinary meeting on 9 February 2005. In a session from which the public was excluded, the Council resolved to rescind Simon Engineering's preferred proponent status.
13.29
KDC's files included an article that was drafted to be included in an issue of Mangawhai Memo that was distributed to the community in February 2005 advising of the Council's decision to withdraw preferred proponent status. The newsletter confirmed that EarthTech and NorthPower had been invited to be preferred proponents to ensure a competitive process to complete negotiations.
Decision to award preferred proponent status to EarthTech
13.30
KDC's files included an article that was drafted to be included in an issue of Mangawhai Memo in June 2005. The article advised the community that negotiations were under way with EarthTech and that costs to the users would be maintained at the same levels as previously advised, subject to inflationary increases. It noted that full consultation with the community would be required if there were any significant changes to any part of the project.
13.31
The Council resolved to accept the draft offer from EarthTech on 24 August 2005 in a meeting from which the public was excluded.
13.32
Various articles in the local newspapers in August 2005 advised that KDC was in final negotiations with EarthTech.
Decisions to purchase the Lincoln Downs farm
13.33
The draft Statement of Proposal on the wastewater scheme was issued for consultation in February 2006. It stated that the final disposal site had not yet been determined. As outlined in Part 10, negotiations to purchase the Lincoln Downs farm began in March 2006. The Council agreed in principle to purchase the farm in May 2006, subject to a full report being provided to the Council on the technical acceptability of the site, the use of the rest of the property, and the financing of the purchase.
13.34
Although the final Statement of Proposal adopted in June 2006 was amended to reflect several changes resulting from consultation, it did not include any additional information about the likely cost of the disposal site or any other costs associated with the selected disposal site, such as costs for a transfer pipeline.
13.35
As we set out in Part 10, in August 2006, the Council was advised that the owners of the farm were seeking an increase in the purchase price. The Council agreed to this.
13.36
An EcoCare Newsletter was distributed in July 2006 that provided an update on the status of the project and also advised of a Community Open Day to be held on 28 July 2006. In that newsletter, KDC provided information about its proposed use of the treated wastewater. It advised that it had a range of irrigation options available, including a specific site that it was currently purchasing. This site was also to be used to store the treated wastewater. There was no further information about the farm purchase or its indicative costs in that newsletter.
13.37
The Council agreed to sign the final sale and purchase agreement for the Lincoln Downs property in November 2006, and the purchase was finalised in April 2007. We could not find any newsletters or press releases around this time that advised the community of the purchase.
Decision to increase scope
13.38
As we set out in Part 11, in October 2006, the Council agreed to increase the scope of the works to be carried out by EarthTech. These changes would also significantly increase the costs of the scheme.
13.39
The Council received a report from Beca on the increased capital costs and how they were to be funded. The report noted that, because the proposed rates and development contributions would need to change, the LTCCP and the Development and Financial Contributions Policy would need to be amended. The report did not state whether the change in the scope of works to be carried out also required consultation.
13.40
Some councillors told us that they considered that further consultation was unnecessary because the cost to individual ratepayers was not increasing. KDC's former Chief Executive told us that the Council did not believe that it needed to consult. No amendment to the LTCCP was ever proposed or consulted on.
13.41
According to Beca's Consultation Summary dated 7 February 2007, information about the project was contained in three updates about the wastewater project that were distributed between September 2006 and January 2007. However, we were only able to locate a copy of one of these, dated 9 November 2006. It contained no information about the decision to increase the scope of the scheme. It was limited to information about the resource consent application that had just been lodged.
13.42
We found no evidence of KDC directly advising the community of its decision to increase the scope of the scheme.
Our comments
13.43
In Section A, we commented that KDC's work to consult with the community and keep people informed was good up to 2002. Between 2003 and 2007, the quality of that communication deteriorated. KDC still put a significant amount of effort into communication, but the substance of the information became less meaningful. As the problems with the project mounted – for example, with the farm purchase and changes to the costs and scope of the project – KDC's communication became less frequent and less detailed.
13.44
We do not comment on specific legal questions, such as whether the consultation requirements of the Local Government Act 2002 were met, because these issues are currently before the High Court.