I refer to your request dated 6 August 2012 and indicate that I will see
if the information is available.  It was an action taken many years ago
and I am unsure whether the material would be available.
 
The writer is able to provide a brief commentary which may be enough for
you because I was involved throughout the exercise.
 
Following a storm event a large section of road slipped and caused damage
to a property.  There was a considerable amount of work required to
reinstate the road and to build a large gambian wall protection.
 
As is the norm in such storm events when damage occurs, Council arranged
for independent engineers to go out to address issues of causation,
remediation work and the like. 
 
Council officers know that in situations such as this, where damage had
occurred to a property that the property owner would not simply rely on
any ability to seek recovery from the Earthquake Commission but would, in
addition, seek to recover damages from the organisation seen to have deep
pockets which is the local authority.  For that reason there was a
proforma notification to our insurers.
 
The property owners were aware an engineer's report had been obtained and
sought a copy of that report.
 
The release of that report was withheld since in our mind it was obtained
to assist a legal assessment knowing in our view that the landowner would
likely commence proceedings against Council. 
 
The landowner then sought review of that decision by the Office of the
Ombudsmen.
 
There was worthwhile debate but the Chief Ombudsmen recommended that
Council should release the report.  He was not of the same view as Council
that it could be withheld since he could not be certain there were
proceedings in contemplation.
 
The Ombudsman's recommendation was taken to full Council.  It was
recommended by officers that in our view good reason existed for the
withholding of the report.  The decision of Council was to agree with that
view and to veto the recommendation.
 
The property owner, as they were entitled to do and still are, took that
refusal to the High Court.  There was a Court hearing.
 
The judge ruled that the Council was entitled to withhold the report.  I
was in court when he made the same valid point that officers had made,
that in situations such as this the target of any action is always the
Council.
 
The win was ours in legal terms, though in accordance with the legislation
at the time Council was obliged to met all costs, both its own and the
requesters. 
 
For your information our fears proved correct and the landowner did issue
proceedings seeking damages against Council.
 
It did not proceed to trial.  There was a settlement finalised.
 
This is a very potted summary of the background. 
 
I hope this general explanation at least helps you understand what
triggered the decision of Council to veto the request.
 
It was to preserve Council's position in proceedings we knew would arise
from a storm damage event which caused substantial damage to a property in
the Sounds.
 
I would like to think we may be able to track back to the Council minutes,
at least, and once I do I will send them on to you.
 
I don't have the same confidence that the background material might still
be available.
 
 
 
Tony Quirk
District Secretary

Marlborough District Council
DDI:    03 520 7429
Fax:    03 520 7496
Email:  [1][email address]
PO Box 443, Blenheim 7240, New Zealand
[2]www.marlborough.govt.nz
[3]http://www.marlborough.govt.nz
 
 

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Further to my email of 9 August 2012 which provided an overview from
memory.
 
I attach the following:
 

* Agenda item for a Council meeting 14 December 1995 plus the Minute
from that meeting.
* Copy of the High Court judgement that dealt with the follow up review
under LGOIMA.

 
 
I expect that the overview plus the attachments provides you with the
information you need.
 
Tony Quirk
District Secretary
Marlborough District Council
Phone: +64 3 520 7400
Fax:    03 520 7496
Email:  [email address]
15 Seymour Street, PO Box 443, Blenheim 7240, New Zealand
Web:  [1]http://www.marlborough.govt.nz
 
 
 
 

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Thanks-all the best with your continuing interest in such matters-a fascinating topic whichever side of the fence one sits
Tony

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