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By email only: [1][FOI #24356 email]

 

Tēnā koe

 

Official information request: RFS 4177930

 

Thank you for your official information request to the Far North District
Council (‘Council’). Your request has been referred to the relevant
Council department for consideration in accordance with the provisions of
the Local Government Official Information and Meetings Act 1987 (the
‘LGOIMA’).  A response will be provided to you as soon as reasonably
practicable, and no later than 20 working days (as defined in the LGOIMA)
after the day on which the request is received.

 

Please quote our reference RFS 4177930 for any further enquiries in
relation to this request.

 

Thank you for your enquiry.

 

Ngā mihi,

Erica Cooney

   
Erica Cooney    
Legal Services Officer ‑ Legal Services
P 6494015306  |  [2][email address]
Te Kaunihera o Tai Tokerau ki te Raki  |  Far
North District Council
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Sen McGlinn

By email only: [1][FOI #24356 email]

                  

 

Tēnā koe Mr McGlinn

 

Official information request: RFS 4177930

 

Thank you for your official information request to the Far North District
Council (‘Council’) received on 9 October 2023. Your request has been
considered in accordance with the provisions of the Local Government
Official Information and Meetings Act 1987 (the ‘LGOIMA’) and the Privacy
Act 2020 (the ‘PA’).

 

Please find your information request below with Council’s responses
alongside in red;

 

·      As regards the earthworks on 26, 28 and 22 Derrick Road, Kawakawa,
performed by Mr. May as co-owner with Sharna Marie May of 26 Derrick Road,
which include dumping fill on the downhill neighbouring properties:

Can Council confirm that a report on remediation work, prepared by Chester
Engineers, has been received by Council?  Yes.

 

·      Can Council provide us with a copy immediately? If not, will the
report be attached to the property files for 26 and 28 Derrick Road, and
when will this be done? Council has decided to refuse the information
sought under section 17(d) of the LGOIMA – as it is expected that the
information requested will soon be publicly available. Mr. May was
directed to apply for Retrospective Resource Consent (‘RC’), which would
include the relevant information as part of the application.

 

·      This question was emailed previously to Carla Ditchfield on 1
August. She informed us in February that she was handling this case. She
has not replied to any emails since April. Please inform us whether she is
still handling this case. It is noted that Ms Ditchfield, Manager - Legal
Services, in her email of 24 February 2023 did not advise that she was
“handling this case”.  Ms Ditchfield is not “handling this case”. It is
currently being managed by Council’s Monitoring Team.

 

·      On August 20, Mr. May informed us verbally that he now has consent
for “what he wants to do.” Has any consent, approval or go-ahead, formal
or informal, been given by the District Council for earthworks on 26
Derrick Road, since Permit 3002060-LGAEWK issued 30 November 2022? Council
is aware that Mr May was granted a Retrospective RC from Northland
Regional Council (‘NRC’). As noted above, Mr May is still required to
legalise some of the earthworks (as the volume exceeded the permitted
limits of the earthworks permit 3002062-LGAEWK.) We are waiting for his
retrospective RC application.

 

·      Has any order been issued by the Council requiring Mr. May to
remove his unconsented earthworks on our property, at 28 Derrick Road, or
to do anything else on 28 Derrick Road? Has an order to complete the works
been issued? As you are aware, Council notified Mr. May regarding several
non-conformities with his 3002062-LGAEWK, namely in relation to erosion
and sediment controls. Mr May is currently working on this request.

 

·      What is the status of the abatement notice requiring that erosion
and sediment controls be instated in compliance with EW-R13 of the
Proposed District Plan? Is it still in force? The Abatement Notice is
still in force and is limited to erosion and sediment control issues. Does
it have penalties attached? Yes, there are penalties attached, however
Council has not issued an Infringement Notice. Is there a deadline for
work to start, or for work to end? No, as noted above, Mr May is currently
working on this request. Does this abatement notice issued to Mr. May in
relation to his earthworks on 26 Derrick Road contain any mention of him
removing the fill he has dumped on 28 and 22 Derrick Road? As noted below,
the fill located on your land is a civil matter.

 

·      We note that according to Council’s email of 7 December 2022, Mr.
May was required to get approvals from us, as affected parties, by 27
January 2023. It is now October, but we have not yet received any request
or plan for works from him. Our email reminders to him, to remove the fill
from our property, go unanswered. As you have been previously informed,
the encroachment of fill onto your land is a civil matter. Ms Ditchfield
stated in her email to you of 24 February 2023 “You have the right to seek
your own recourse with regard to any effect the works have had on your
land, in doing so we strongly recommend that you seek independent legal
advice. […] Any action that the Council takes in its regulatory function
does not prevent you, an aggrieved landowner, from taking action in
response to the earthworks by your neighbour as you see fit,
independently, with independent legal counsel.”

 

·      With reference to our previous Official information request: RFS
4151283, and the response from Erica Cooney, Solicitor, for the Far North
District Council on April 21, 2023.

The information that Council has redacted or refused to provide under that
LGOIMA request, is information that should have been available to us if,
as required by the Earthworks Bylaw and the Local Government Act, we had
been consulted as an affected party, and notified as an affected party
under the RMA, and the permit documents had been made available for
inspection on the work site, as required. We are asking for this
information via a LGOIMA request because of Council’s failures in
procedure. It is absurd for the FNDC to deny it on privacy grounds.
Everything that we should have been informed of, if Council had followed
proper procedures, should now be provided to us. We therefore request all
the documents, without redaction.  Please refer to Council’s response
under Request for Service (‘RFS’) 4151283, which remains valid.

 

·      Erica Cooney wrote: “Land disturbing activities taking place near
or on the boundary require approval from neighbours. It’s the permit
holder responsibility, not the Council, to seek such approvals.”

Can Council confirm that it is Council’s responsibility to ascertain that
the affected parties have given their approval, before issuing a permit?
As earlier advised, it is the permit holder’s responsibility, not the
Council, to seek such approvals. Please refer to Condition 1 of Permit
3002062-LGAEWK previously provided.

Can Council acknowledge that it has failed in this respect? If so, which
Council department or officer failed? Please see above.

 

·      Why did the Council not require the applicant to provide a
Chartered Professional Engineer Report before issuing the earthworks
permit? This is not a requirement as part of lodgement. If the processing
engineer (Haigh Workman) require this, we would go back to the applicant
and request further documentation.

 

·      Erica Cooney wrote “D Rawiri is not an engineer, but rather a
support officer who signed the documents on behalf of the *Haigh Workman
engineer* approving the retrospective permit application.”

Our information, verbally but direct from Haigh Workman staff, is that no
engineer working for them was involved in the earthworks permit
application. Rather an individual who has access to a Haigh Workman
vehicle and office facilities through a personal connection was employed
freelance by the applicant, Mr. May. If this is true, there would be a
conflict of interest: a person employed by the applicant to draw up an
application is also working on behalf of Council to approve his client’s
application.

We point out that, if Council had followed correct procedures, we would
have had access to the permit application without redaction, and we would
know the name of the approving engineer. Therefore we would like to know:

 

- The name of the engineer who drew up the earthworks application The
earthworks application appears to have been prepared by the applicant - Mr
May.

 

- The name of the engineer, said to be working on behalf of Haigh Workman,
who approved the permit application that was signed by Donna Rawiri. Mr
Rex Shand.

 

- Does the Council have a contract with Haigh Workman by which it
delegates its power to approve some of its permit applications? Yes.

 

- Has Haigh Workman approved permit applications for the FNDC in the past?
Yes. Was a tendering procedure involved in the delegation of powers? No,
as it is not a procurement.

 

- Has this individual approved permit applications for the FNDC in the
past? Yes.

 

- If so, is this covered by a contract? Was that contract awarded
competitively? Please refer below - Mr Shand is an employee of Haigh
Workman Ltd.

 

- If this individual has approved permit applications for the FNDC in the
past, in what capacity was he functioning? For example as a Council
consultant, as an employee of an engineering firm, or as a freelancer? As
noted above, Mr Shand is an employee of Haigh Workman Ltd., Council’s
consultant engineers.

 

- What qualifications does this individual have that are relevant to
earthworks engineering? This query concerns personal employment matters.
Council has therefore decided that to protect Mr Shand’s privacy this part
of your request must be refused under section 7(2)(a) of the LGOIMA.
Further, Council is mindful of the constraints imposed by the PA and
considers that the request does not fit within the exceptions that would
allow for such personal information to be made available, even if it were
held by Council. (Please refer to the PA, section 22 Information Privacy
Principle (IPP)11). So, to the extent that the PA applies, Council also
relies upon the withholding ground in section 17(c)(i) of the LGOIMA. This
ground provides that a request may be refused if the making available of
the request would be contrary to a specified enactment, (in this case, the
PA).

 

The decision to withhold information under section 7 of the LGOIMA
is subject to a ‘public interest test’. In addressing this point,
Council believes that in the circumstances, there is no public
interest in releasing this information that would outweigh the need
to withhold it.

 

- What steps did Council take to check that this individual is qualified
to act on behalf of Council in this way. The contract Council has with
Haigh Workman requires that suitably qualified persons perform the
contracted work. Haigh Workman is legally obligated to ensure that this
requirement is met.

 

- Do Council procedures allow one person to prepare a permit application,
by drawing plans for work, and then approve his own plans on behalf of
Council? Is there a standard procedure that this should not be allowed?
No, Council’s procedures would not and do not allow for what would clearly
be a conflict of interest.

 

·      As regards our question 6, regarding the origin of the fill, and
6a, asking whether this fill came from Council earthworks, road works,
slip removal or the like, Erica Cooney replied “Council does not hold this
information.” This is not credible: either the fill comes from a Council
work site, or it does not. Either there was a permit issued to remove the
fill from its origin, or no permit was issued. Council is the permitting
authority for an area that must include the origin of the fill. If it has
no record of the applicant, as landowner or contractor, applying for an
earthworks permit to remove material and transport it to 26 Derrick Road,
then the answer to question 6 must be, “it came from unpermitted
earthworks.” Therefore we are asking this question again: (a) was the fill
from Council-related earthworks, (b) what information does Council now
have regarding its origin, and (c) what steps has Council taken to
discover its origin, since I asked this question 6 months ago? Please
refer to Council response in relation to Question 6a of RFS 4151283, which
remains valid. That is, Council does not hold this information and
therefore this query must be refused in reliance on section 17(g) of the
LGOIMA – that the information requested is not held by the local
authority. Council has not taken any further steps to discover the fill’s
origin since the question was posed in RFS 4151283.

 

·      Erica Cooney writes: “Council notes that it is currently
investigating, and seeking the redress of, various non-compliance issues
relating to the retrospective earthworks permit. These include spillage of
fill onto neighbouring properties and affecting a stormwater overflow path
nearby…”

What is the current state of this redress, as it concerns our property and
the water issues? As above, Mr May is still required to legalise some of
the earthworks (as the volume exceeded the permitted limits of the
earthworks permit 3002062-LGAEWK.) We are waiting for his retrospective RC
application.

Does the Council intend to inform us, and other affected parties, about
this? If so, when? I understand that the Monitoring Team has been in
contact with you very recently about this matter.

To date, there has been neither communication nor action from Council,
since April.

 

·      On November 29, the day before the earthworks permit was issued by
Donna Rawiri, the compliance officer sent her an email reminding her of
the fill trespassing on 28 Derrick Road. On whose authority was this
information removed from consideration when issuing the permit? Council
does not hold this information and therefore this query must also be
refused under section 17(g) of the LGOIMA.

 

·      The Application Form that Erica Cooney enclosed, dated 22/11/2022,
contains three factual errors.

- that the volume of fill involved is 200m3. An estimated 137m3 of fill
has been dumped on our land, and the volume on Mr. May’s property is much
more, as a gully was filled in and the height of fill at the boundary is
just short of 3 metres.

- that the applicant tried to erect a silt fence on the northern and
western boundary but was denied access. As regards our property on the
western boundary, this is not true. First, we did not deny access and
second, if the fence was to be erected on the western boundary, access
through our property would not be needed. Instead, the applicant installed
a paling fence close to the boundary, such that water, sediment and fill
flow under the fence. Much later than this application, he asked us for
permission for a silt fence, and presented a sketch which was technically
inadequate, as it lacked elevations and construction details. But as of
22/11/2022, we had not been asked for access and we had not refused
access.

- the plan of works presented with the application shows, on the last
page, a fill area that stops at the boundary, but when this application
was submitted, the fill had already been dumped on our side of the
boundary, and the person who drew the plan and approved the application on
behalf of Council could not have overlooked this fact. Therefore this
application was deliberately untruthful, hence our question about the
qualifications of the person who drew it up and approved it. The plan
shows a swale, which has not been installed, so that surface water flows
at several places across the boundary and is scouring gullies on our side.
Bearing in mind that this was a retrospective application, it was
incorrect to show a swale that had not been installed and to date has not
been installed. The stormwater soakage field also did not exist and has
not been built. The plan is, to a significant degree, a fiction.

We believe we are entitled under the Privacy Act to require a local body
holding information about an individual to make corrections to that
information when requested. We request that our three corrections to the
permit application should be permanently attached to the application, in
such a way that nobody viewing the application could fail to notice that
there were corrections to be taken into account. If Council had followed
correct procedure when the application was received, we could have
informed the Council of these errors at the time.” As IPP7 section 22 of
the PA does not apply to your request, Council is not permitted to add
your ‘corrections’ to a third party’s information. Your respective
comments have been saved on your RFSs.

 

You have the right to seek a review of this decision by the Ombudsman if
you so choose. Information about how to make a complaint is available at
[2]www.ombudsman.parliament.nz or Freephone 0800 802 602.

You also have the right to make a complaint about the decision to the
Privacy Commissioner. Information is available at
 [3][email address]  or Freephone 0800 803 909 (Monday to
Friday, 10:00am to 3:00pm).

 

Thank you for your enquiry.

 

Nāku noa, nā

 

Erica Cooney

 
Erica Cooney    
Legal Services Officer ‑ Legal Services
P 6494015306  |  [4][email address]
Te Kaunihera o Tai Tokerau ki te Raki  |  Far
North District Council
--------------------------------------------------

Pokapū Kōrero 24-hāora  |  24-hour Contact Centre 
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