Liability of Local Authorities

Transcription

1 Liability of Local Authorities 1. Nature of local government 1 Types of local authorities 1 Two-tiered system: regional councils and territorial authorities 1 Related bodies 2 Community boards 2 Council organisations 3 Purposes and powers of local government 3 Underlying theory of local government 3 Corporate body and (new) power of general competence 6 Governance and decision-making 8 Governance and management responsibilities 8 Decision-making 9 Delegations 11 Personal liability of members 14 Litigation against local authorities - miscellaneous 16 Name 16 Description 16 Service Official Information 17 Immunity for disclosure of official information 17 Land information memoranda 20 Introduction 20 Information that must be disclosed 21 Liability for erroneous LIMs Vicarious liability 29 Course of employment 29 Non-delegable duties 30 Special situations Negligence and government authorities 33 Introduction 33 The general approach to finding a duty of care 34 A genuinely difficult issue 34 The common law approach to the duty question 35 New Zealand just muddling through 36 Where does the obligation come from the statute, the common Law, the relationship between the government and the citizen? Remedial gap or part of the essential division between public and private law? 42 Negligence, discretion and the interface with administrative law 45 Lord Keith s exclusionary rule 45 Liability within "justiciability" 46 39

2 The "policy-operational" distinction 46 The rejection of the policy-operational distinction 47 Barrett a newer approach governmental discretion 49 Gorringe a possible limitation on Barrett 52 Liability for failing to protect? Liability in the planning process 57 Council planning decisions no liability for mere illegality 57 The traditional English position applied 57 The Canadian "immunity" cases 58 The Australasian unorthodox orthodox approach 60 Providing information 61 Shaddock the recognition of liability 61 Applying Shaddock limiting Shaddock City of Botany Bay Council 62 The New Zealand high point Brown v Heathcote County Council 64 The importance of keeping proper records Bronland 66 Limitations on the Shaddock principle 67 Information that is too general 67 Not the authority s job 68 Failure to observe proper process 69 A New Zealand high water mark 69 New South Wales refuses to follow suit 72 The New Zealand reaction to Craig 74 The concept of immunity 74 Morrison no duty of care in interpreting or making planning decisions 75 Morrison and Craig 77 Applying Morrison no liability for wrongly registering a transfer of a water consent 77 Some parts of the process are not subject to the immunity. 78 De Nagy a little more ambiguous Liability for negligently inspecting buildings 82 Leaky homes new crisis and old cases 82 The leaky homes system 82 The procedure under the Act 83 The jurisdiction of arbitrators 84 Problems with the procedure 84 Remedies under the Act 86 The building cases 86 The (almost) unique New Zealand case law 86 Cooke P and the "impossible distinction" 87 Richardson J and the unique New Zealand environment 88 The agnostic Privy Council 89 The English take on New Zealand s approach general reliance 90

3 The Canadian position 91 Developments in (restricting) economic loss 91 The responsibility of the owner-builder 93 The knock out blow argument fails 93 The patent-latent distinction 94 Questions left over after Hamlin 95 (Non) liability of regulators 97 Introduction Fleming v Securities Commission 97 The Canadian decisions Cooper and Edwards 98 Carter a man, a woman, a company and a boat 100 Rutherford a relic of a forgotten theory? 102 Carter the possibility of a claim for breach of statutory duty 103 Breach of statutory duty and the Building Act 104 Carter as the trend for the future? 105 The reaction to Carter and Three Meade in leaky homes cases 105 Three Meade Street 108 The importance of the decision 108 Facts and holdings 108 Relationship of Three Meade to the building cases 109 The reaction to Three Meade 110 Breach of the duty of care 112 The importance of breach 112 Venning J s approach to breach the impact of the Building Act 113 Looking at the particular claims in Three Meade 114 Particular breaches in Ponsonby Gardens adjudication Nuisance, Rylands v Fletcher and public authorities 120 The land based torts as a loss spreading instrument through the community 120 Thames Water the case for not spreading the loss 121 The approach of the High Court and the Court of Appeal 121 Ryland v Fletcher and public authorities 122 New Zealand councils the nuisance clause and statutory authorisation. 123 Thames Water and the burden of public obligation 126 The importance of other means of redress 127 The importance of the statutory scheme 127 Lord Hoffmann and the proper realm of public law redux 128 Public law for a privatised company? 129 Human rights actions are still subject to the same "public law" 130 New Zealand s drain law 131 The importance of causation 131 Strict liability Misfeasance in a public office 136

4 Introduction 136 The justification for the tort 137 The relationship between misfeasance and other torts. 138 Misfeasance and the other intentional torts 138 Misfeasance and negligence 139 The elements of the tort 139 Targeted malice 143 Duty to the plaintiff? 147 Causation, damage and remoteness 149 Misfeasance claims in planning cases 150 The possibility 150 The difficulty of imputing malice 151 Reservations about succeeding in misfeasance Underlying liability of local authorities 154 Ardern v Rodney District Council and Roberts v Rodney District Council 154 Grubmayr v Auckland City Council Restitutionary remedies 158 Restitution 158 Electricity Corporation of New Zealand v Waikato Regional Council 158 Conclusion on ECNZ v WRC 161 Pacific National Investments Ltd v Victoria (City) 161 Implications Bill of Rights 164 Application of BORA to local authorities 164 What type of conduct will implicate BORA? 164 BORA compensation principles and caselaw 165 Upton v Green 166 Binstead v Northern Region Domestic Violence (Programmes) Approval Panel 166 Udompun v A-G: High Court 167 Udompun v A-G: Court of Appeal 168 Conclusion 170 Narrowing the scope of the application of s 27(1) BORA 170 Bylaws should be drafted to restrict BORA rights as little as possible 172 Conclusion on BORA Equity 176 Rating 176 Mackenzie District Council v ECNZ 176 Wellington CC v Woolworths NZ Ltd (No 2) 177 Subsequent cases: narrow application of Mackenzie 178 Evaluation 179 Estoppel and representations by public authorities 179

5 (1) Ultra vires representations 180 (2) "No-fetter" rule 180 (3) Ostensible authority and non-delegation of powers 180 (4) Representations as to public policy or political issues 180 (5) "Ordinary" commercial and proprietary transactions 182