Jori Whitfield-Topp is a Research Intern at Franks Ogilvie.
A student at Victoria University of Wellington, Jori will be finishing his LLB/BA in 2021 with a double-major in Political Science and International Relations.
He has experience across the public sector, having worked at Te Taura Whiri | Te Reo Maori (Māori Language Commission), the Electricity Authority and NZ Police.
Alongside his interests in public and commercial law, Jori enjoys employment law in his previous work as a legal assistant. He has provided commentary on various topics, including business approaches to COVID-19, Labour Inspectorate Decisions and the Declarations of Inconsistency Bill.
The Wanaka Shareholders Group (WSG) applied for judicial review of the Queenstown Lakes District Council (QLDC)’s decision to lease the Wanaka Airport land and infrastructure to Queenstown Airport Corporation Ltd (QAC).
QAC, a council-controlled organization, owns Queenstown Airport. In April 2018 QAC took over the Wanaka Airport lease. WSG represents approximately 3,500 residents of Wanaka and the Upper Clutha Valley. Membership grew in response to concerns about possible intrusive development of Wanaka Airport, including the implementation of jet services. WSG also had concerns that the lease duration to QAC was 100 years and was perpetually renewable.
Under s 97(1)(b) of the Local Government Act, decisions to transfer ownership or control of a strategic asset must be provided for in a local authority’s long-term plan. WSG argued that the terms of the lease amounted to a transfer of ownership or control of the airport. Because of this, QLDC should have provided for the decision in its long-term plan and its failure to do so was in breach of the Act.
Was there a transfer of ownership?
The Court interpreted ‘ownership’ under s 97 to require transfer of freehold title. The Court acknowledged that the lease transferred legal ownership of all relevant buildings and assets that made the airport. However, while the buildings and assets may constitute the airport, freehold title to the land itself had not transferred to QAC and so it did not meet the definition of ‘ownership’ under the Act.
Was there a transfer of control?
The Local Government Act does not define ‘control’ and no previous decisions had established what constitutes a transfer of control for the purposes of s 97. The Court determined Parliament must have intended s 97 to apply where the authority transfers substantial and effective control over the asset, irrespective of whether freehold title is retained. The terms of the lease gave QAC economic and legal control over the airport with effectively the same rights as they would have if they owned title. For these reasons, the Court held the lease gave QAC ‘control’ over Wanaka Airport.
The transfer of control meant the decision should have been made in the context of the long-term plan. By failing to do so, QLDC acted unlawfully.
Had QLDC taken a decision to alter significantly the level of service provision at Wanaka?
WSG also argued that the intention to provide jet services was a significant alteration to the airport’s service provision, which should have been provided for in the long-term plan as well. However, the Court found that while QAC and QLDC had high level discussions about the possibility of expanding services, no fixed plans had been made that could amount to an agreement that ought to have been included in the long term plan.
Did the consultation carried out by QLDC comply with the Local Government Act?
WSG’s final claim was that QLDC had breached consultation requirements under the LGA. QAC undertook consultation in August setting out options for development of Queenstown Airport which included discussion about the use of Wanaka Airport. WSG claimed QLDC did not adequately explain its plans for expansion in their Statement of Proposal for development of Wanaka Airport. The proposal stated that Wanaka Airport’s role “over the next decade or longer” was to accommodate spillover from Queenstown Airport. There was no indication that QLDC contemplated a lease of 100 years or more, nor that this decision to grant a lease would include development for scheduled jet services.
The Court agreed and found that the Statement of Proposal did not fairly reflect QLDC’s plans for the airport lease.
The High Court issued a declaration that QLDC’s decision to grant the lease was unlawful, meaning that it and any arrangements associated with it had no legal effect.
If you would like to understand more about this case, or similar issues, please contact Senior Consultant Brigitte Morten
Financial Services Complaints Limited (FSCL) made three unsuccessful applications to the Chief Ombudsman to use the name “Ombudsman”. The first decision of Chief Ombudsman to refuse FSCL was made on 15 July 2016, and was subsequently set aside by the Court of Appeal. In this case, the High Court was asked to review the Chief Ombudsman’s second decision to refuse FSCL made on 20 June 2019.
An Ombudsman is an independent official appointed by Parliament to investigate complaints regarding the conduct of government executives and agencies. The name ‘Ombudsman’ is protected under s 28A of the Ombudsmen Act, which holds that only those appointed by legislation or written consent of the Chief Ombudsman may use it.
FSCL was the first scheme to be established under the Financial Service Providers(Registration and Dispute Resolution) Act 2008. The scheme provides an avenue for financial service customers to seek dispute resolution against participating financial service providers. FSCL applied to the Chief Ombudsman for approval to describe itself as “FSCL – a Financial Ombudsman Service”, and its CEO as “Financial Ombudsman and CEO”.
Grice J acknowledged that the decision to refuse FSCL’s applications was reasonably available to the Chief Ombudsman in the circumstances. However, a decision to approve the application was also a viable outcome. It was thus the responsibility of the Chief Ombudsman to approach the issue with an open mind, and not a predetermined outcome.
On its face, the process appeared legitimate. The communications from the Chief Ombudsman to FSCL were all above board and nothing in the official documents suggested pre-determination. However, the Court found that all the evidence of the surrounding actions and circumstances needed to be considered in the round. Steps taken by the Ombudsman outside those official communications to FSCL suggested that the outcome was predetermined.
The High Court found predetermination could be inferred in circumstances where:
- The Chief Ombudsman was predisposed against granting use of the name “Ombudsman” to any private organisation;
- Comments made in emails to the Speaker indicated that “the Chief Ombudsman had closed is mind and was not amenable to persuasion”; and
- The Chief Ombudsman failed to take steps to obtain a savings provision for FSCL to ensure that if approval was granted, it would be effective.
Taken together, this suggested that the Chief Ombudsman never intended to accept FSCL’s application.
The decision was set aside and referred back to the Chief Ombudsman for reconsideration. Grice J suggested that the issue be reconsidered by a different person, either through a temporary appointment to the role of Chief Ombudsman, or a delegation of the decision-making powers.
Following its commencement on 11 March 2021, the Ombudsmen (Protection of Name) Amendment Act restricts the use of the name ‘Ombudsman’ to persons appointed under the 1975 Act or a public sector department. This means that private sector schemes such as FSCL will be prevented in future from applying to use the name for themselves. However, a savings provision has been provided for FSCL under the Act. This means that the scheme will be able to use the name if, upon reconsideration, consent is given by the Chief Ombudsman.
If you are interested in more about this case, or judicial review, please contact Aimee Dartnall.