Rice Speir https://ricespeir.co.nz Alternative Legal Thinking Wed, 05 Jun 2019 07:26:01 +0000 en-NZ hourly 1 https://wordpress.org/?v=5.0.4 https://ricespeir.co.nz/wp-content/uploads/2018/02/cropped-Rice-Speir-Favicon-32x32.png Rice Speir https://ricespeir.co.nz 32 32 Important reforms proposed for Building Act https://ricespeir.co.nz/important-reforms-proposed-for-building-act/ https://ricespeir.co.nz/important-reforms-proposed-for-building-act/#respond Tue, 04 Jun 2019 09:31:34 +0000 https://ricespeir.co.nz/?p=5368 Help is on its way for Building Act regulators. Central Government is proposing sweeping reforms to the Building Act – the most significant since it was introduced in 2004. MBIE has recognised the long-standing issues with the building regulatory system, many of which we have written about in Straight Up. It has started a consultation…

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Help is on its way for Building Act regulators.

Central Government is proposing sweeping reforms to the Building Act – the most significant since it was introduced in 2004.

MBIE has recognised the long-standing issues with the building regulatory system, many of which we have written about in Straight Up. It has started a consultation process that aims to raise the bar by:

  • significantly increasing financial penalties for Building Act offending;
  • differentiating between penalties for individuals and organisations; and
  • extending the timeframe for councils to bring charges from 6 to 12 months.

We encourage all our council clients to make a written submission in support of the proposals, here, by 5:00pm on Sunday 16 June 2019.

Deterrence through increased penalties and accountability

Deterring illegal building work is the biggest driver for prosecuting under the Building Act.  As we have said previously, not every case of non-compliance needs to be prosecuted.  It is always a balancing act.

To help councils, MBIE proposes to increase the maximum penalties for individuals and companies so they are fit for purpose and reflect the seriousness of the offence.  MBIE has created a “low-medium-high-very high” scale for Building Act offending and maximum fines will range from $25,000 to $1.5 million, depending on the seriousness of the situation and whether the offender is an individual or a company.

Distinguishing between individuals and organisations will incentivise compliance and will bring the Building Act in line with the Resource Management Act and other pieces of legislation.

More time to file charges

As we wrote in ‘If you snooze, you lose’, councils currently have 6 months to lay charges under the Building Act.  MBIE accepts that this is not always long enough, due to the complexity of some cases and the number of people involved.  In our experience, this narrow limitation period is one of the biggest barriers to prosecuting.

Fortunately, MBIE is proposing to extend the timeframe for a prosecution to 12 months.  This will give councils more time to complete their investigations and take appropriate advice on their enforcement strategy.

Impact on building sector and regulators

We are pleased to see MBIE taking action in this space, but it has been a long time coming.  With better statutory tools, it is our hope that local authorities will feel more comfortable in using their enforcement powers and in doing so may prevent – in some cases – significant legal and reputational consequences.

The reform is welcomed and the full discussion paper can be found here.

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Gunshots and meditation: Auckland retreat takes aim at proposed shooting range https://ricespeir.co.nz/gunshots-and-meditation/ https://ricespeir.co.nz/gunshots-and-meditation/#respond Tue, 04 Jun 2019 09:27:57 +0000 https://ricespeir.co.nz/?p=5363 When a remote meditation retreat in Auckland discovered a shooting range was setting up next door, it went to court to try and preserve its peace. And it won – but not because of concerns about gunshots echoing across the valley. In a case which the court called unusual, the gun club lost because the…

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When a remote meditation retreat in Auckland discovered a shooting range was setting up next door, it went to court to try and preserve its peace.

And it won – but not because of concerns about gunshots echoing across the valley.

In a case which the court called unusual, the gun club lost because the council had not been provided with sufficient information to properly conclude that the earthworks would comply with the permitted volumes.

The case

The Vipassana Foundation Charitable Trust, north of Auckland, successfully set aside a certificate of compliance authorising the Auckland Shooting Club to operate a premier shooting range at a site within 1.2km of its mediation centre.

The Court of Appeal decision follows a decision of the High Court in which Justice Whata found that Auckland Council’s decision to grant the certificate of compliance was flawed and, rather than setting the certificate aside, referred the matter back to the council for reconsideration.

In doing this, Justice Whata commented that this is “an unusual, indeed rare course” but that this is an “unusual case”.

Having reconsidered the application, the council decided to reissue the certificate of compliance to the Shooting Club.

The Trust took its case to the Court of Appeal in August 2018, arguing that there were five errors in the High Court decision.

The Court of Appeal rejected all but one of the Trust’s grounds of appeal.  The successful point was on the issue of earthworks – the Court found that the council had insufficient information to properly conclude that the earthworks required to construct the range would comply with the earthworks rules.

On this, the Court of Appeal disagreed with the High Court, which had rejected the Trust’s earthworks argument and found that it was sufficient that the applicant had volunteered to comply with the earthworks limits in the plan.  By contrast, the Court of Appeal found that:

  1. There were no plans were submitted with the application and that this should have been a red flag for the council.
  2. The council dealt with the application by treating it as if the earthworks would comply with the relevant rules, even though this was not what the application said. Councils cannot assume compliance with rules and certificates of compliances cannot be issued which are conditional on compliance.

With that, the Court of Appeal set aside the Shooting Club’s certificate of compliance.

Takeaway for councils

Although the Court of Appeal did not make new law on the interpretation and application of s 139 of the Resource Management Act 1991, it did confirm the 1999 decision of the Court of Appeal in Pring v Wanganui District Council that a council must be satisfied that there is compliance.  The decision is clear that, before granting a certificate of compliance, a council must have sufficient information to enable it to make the appropriate comparison of the proposal with the applicable plan rules.  For a council, this task is two-fold.  It must first ascertain which rules apply to the proposal and then determine whether the proposal complies with the permitted activity rules.  Unless or until a council has sufficient information to do this, a certificate of compliance should not be issued.

Conclusions

So, where does this leave the mediation centre and the Shooting Club?

For the Shooting Club, the Court of Appeal’s finding has significant implications. The day after the certificate was granted, the activity status of an outdoor shooting range changed as a result of decisions made on the proposed Auckland Unitary Plan.  This means that, if the Shooting Club still wants to establish a shooting range on the site, it will need to apply for resource consent and it is likely that the Trust (and possibly others) would be involved in this process.

Even with this win under its belt, this is not the end of the road for the Trust.  The meditation centre has applied for leave to appeal the Court of Appeal’s decision in relation to its noise argument to the Supreme Court.  Watch this space!

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Defendants beware – class actions are gathering momentum https://ricespeir.co.nz/defendants-beware-class-actions-are-gathering-momentum/ https://ricespeir.co.nz/defendants-beware-class-actions-are-gathering-momentum/#respond Tue, 04 Jun 2019 09:23:26 +0000 https://ricespeir.co.nz/?p=5359 Class actions are on the rise in New Zealand. This increase in class actions, as well as the availability of litigation funding to assist with these types of claims, will concern likely defendants – large, resourced entities including insurers, local and central government and large companies. At the moment, there are class actions in progress…

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Class actions are on the rise in New Zealand.

This increase in class actions, as well as the availability of litigation funding to assist with these types of claims, will concern likely defendants – large, resourced entities including insurers, local and central government and large companies.

At the moment, there are class actions in progress in New Zealand on allegedly defective cladding (James Hardie; Carter Holt Harvey), Christchurch earthquake settlements (Southern Response; Claims Resolution Service / Grant Shand Barristers & Solicitors), allegedly misleading prospectus (Feltex), and the PSA incursion (Kiwifruit claim).  The majority of these claims are supported by litigation funders, who will presumably be taking a share of the proceeds if the claims are successful.

Further class actions appear to be in the early stages, including actions by:

  • Owners alleging damage to their homes by roadworks on Auckland’s Southern motorway;
  • Owners of defective buildings, alleging claims against councils;
  • Telecommunications workers alleging financial losses from subcontracting arrangements;
  • Owners of properties built with steel reinforcing mesh, alleging claims against manufacturers;
  • Residents affected by the Edgecumbe floods, alleging claims against the regional council.

Why defendants should be concerned

The Supreme Court has an encouraging attitude towards class actions, calling them a “flexible tool of convenience in the administration of justice”. [1]   This is important because in order to proceed, lead plaintiffs need to show that the proposed class have the “same interest in the subject matter” of the proceeding.[2]  The Courts have taken a liberal approach to the “same interest” requirement and the grant of orders allowing class actions to proceed.  The key arguments in favour of class actions proceeding – including efficiency, and avoiding duplication and inconsistent findings – can be difficult to counter.

Also of concern for defendants is that filing a representative statement of claim, even before class action orders are made, stops the clock for limitation for all potential class members.  That means that all potential members of the class, even those who haven’t signed up to or even heard about a proposed class action, benefit from the filing of the representative statement of claim.  They can later join the class action (subject to any opt in orders made by the Court) without the risk of any limitation periods that expired in the meantime barring their claims.

Scepticism about litigation funders

But there is a glimmer of hope for defendants, at least in funded actions.  Elias J in her dissenting decision in PWC v Walker[3] perhaps signalled a willingness to interrogate litigation funding agreements if they give the funder significant control over the proceeding.  This may feed down to the lower Courts in considering whether to grant leave for class actions where litigation funders are involved.  At the very least where a litigation funder is involved the Courts are willing to require reasonably significant security for costs, generally staged over the course of the proceeding.

Changes could be coming

The Law Commission is looking at both class actions and litigation funding.  More regulatory structure around class action would likely facilitate and may even reduce costs involved with bringing a class action, to the advantage of consumers and other prospective plaintiffs, and the detriment of likely defendants  The Australian Law Reform Commission has recently reviewed class actions and litigation funding in Australia, recommending that litigation funders be more closely supervised.  It remains to be seen whether New Zealand will follow suit.

 

[1] Credit Suisse Private Equity LLC v Houghton [2014] NZSC 37.  This is a claim by a group of investors against the directors of a failed company, and the auditors of its prospectus.

[2] Rule 4.24, High Court rules 2016.

[3] PWC v Walker [2017] NZSC 151 [6 October 2017].

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Real Estate Agent censured for falsifying records https://ricespeir.co.nz/real-estate-agent-censured-for-falsifying-records/ https://ricespeir.co.nz/real-estate-agent-censured-for-falsifying-records/#respond Tue, 04 Jun 2019 08:53:48 +0000 https://ricespeir.co.nz/?p=5355 A home buyer in South Auckland was outraged when he discovered that a large portion of his new property was going to be claimed by Auckland Transport – and that the real estate agent knew about this at the time but did not pass this on. Non-disclosure of material information by real estate agents continues…

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A home buyer in South Auckland was outraged when he discovered that a large portion of his new property was going to be claimed by Auckland Transport – and that the real estate agent knew about this at the time but did not pass this on.

Non-disclosure of material information by real estate agents continues to be a hot topic for our real estate clients.  In a recently released decision, the Tribunal found that a real estate agent failed to disclose that Auckland Transport intended to take 107m2 of property under the Public Works Act.

Background

In early 2016 Mr Singh bought a property in Goodwood Heights.  What he didn’t know at the time was that Auckland Transport was going to take a slice of the land to widen the road.

Mr Singh made a complaint to the Real Estate Authority, which investigated.

The real estate agent, Indra Prasad, denied she had failed to inform Mr Singh and his agent about the road widening. In support, she pointed to her own diary entries, which recorded in writing on a number of different dates that she had told all prospective purchasers including Mr Singh’s agent about the road widening.

The Authority laid a misconduct charge and a disgraceful conduct charge against her, alleging non-disclosure, and that she had falsified her own diary records by retrospectively adding in diary entries.

At the hearing, one of the key issues was the reliability and credibility of her diary entries.  In finding the charges proven, the Tribunal found that:

  • There were a number of issues and inconsistencies with her diary notes, and that Ms Prasad’s diary entries were not reliable or credible.  A handwriting expert was not needed.
  • She had falsified diary records to support her case that she “told everyone” when she learnt of Mr Singh’s complaint.
  • There was no advice of the road widening proposal in any written marketing material and that, while Ms Prasad did tell some prospective purchasers about the road widening, she did not inform everyone and it was not for her to select who to inform.
  • The road widening and consequent loss of 107m2 from the property would inevitably have a significant impact on the sale price, which clearly gave rise to an obligation of disclosure.

At the penalty hearing, Ms Prasad was censured, her license was suspended for 18 months, and she was ordered to undertake further training and education.

Take away points

A real estate agent will always act in the best interests of the seller when it comes to marketing a property.   However, licensed real estate agents have clear obligations when it comes to disclosure:

  • The agent must not mislead a seller or a potential buyer.
  • The agent must not withhold any information.
  • It is not up to the agent to uncover any hidden defects in a property, but they must tell any prospective buyers what they know.

Under the Real Estate Agents Act 2008, if a licensed real estate agent suspects that a property may have a defect then he or she is obliged to ask the seller about it, or advise potential buyers of any risks.

There are sometimes grey areas, and the question of whether something needs to be or has been properly disclosed is not always straightforward. The best way for a real estate agent to avoid any confusion about whether something material has been disclosed and the potential consequences is to provide the information clearly, in writing, to all relevant persons.

Simon Waalkens is a specialist in real estate agency disclosure issues and acted for the successful party in this case.   He has acted for and against real estate agents in a number of disclosure related cases, on issues as diverse as failing to disclose a house was contaminated with methamphetamine, failing to disclose weather tightness issues, failing to disclose a conflict of interest, and misrepresenting access rights to land and water.

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Path to prosecuting under the Building Act now clearer than ever https://ricespeir.co.nz/path-to-prosecuting/ https://ricespeir.co.nz/path-to-prosecuting/#respond Mon, 03 Jun 2019 06:53:09 +0000 https://ricespeir.co.nz/?p=5350 Do councils need a Judge’s permission to file charges under s 40 of the Building Act? And, can a person be convicted of an offence? Rice Speir recently argued a precedent-setting case for Auckland Council, which answered these two questions. The case, which will be of interest to all councils, is available on our website…

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Do councils need a Judge’s permission to file charges under s 40 of the Building Act? And, can a person be convicted of an offence?

Rice Speir recently argued a precedent-setting case for Auckland Council, which answered these two questions. The case, which will be of interest to all councils, is available on our website here.

The issues for determination

The defendants had been charged by the council under s 40 of the Building Act in relation to renovations at an Epsom property. They argued that the council had made a mistake when filing the charges and asked the Court to throw them out on that basis. The issues were very technical and involved a “fruit salad” of sections and Acts that we won’t bore with you here. However, the essential questions were:

  • Does a council need a Judge’s permission (leave of the Court) to file charges under s 40 of the Building Act?
  • Can an offender be convicted if found guilty under s 40?

The answers to these two questions would determine whether or not the prosecution was correctly brought.

Does a council need a Judge’s permission to file charges under s 40 of the Building Act?

Referring to an old statute from 1957, the defendants’ lawyer argued that because s 40 of the Building Act is an “infringement offence”, a Judge’s permission (leave) is needed before a council can file charging documents. Because the council hadn’t in this case, the defendants’ lawyer asked the Judge to throw the charges out.

We defended the council’s actions and suggested that the Building Act creates its own, self-contained, infringement regime that gives councils two independent ways to enforce under s 40: either by issuing an infringement notice or by filing charges in Court.

Although the issue was novel in the context of the Building Act, the same point had arisen many years ago with the RMA. In fact, Down v R went all the way to our highest Court.

In the present case, the District Court agreed with us that the enforcement regime under the RMA and Building Act are essentially the same or at least have the same effect. In the Judge’s own words:

“The two statutory schemes in relation to infringement offences are sufficiently similar to support that approach, notwithstanding the difference between them and an offender against the RMA may be sentenced to imprisonment but an offender against the BA may not”.
– Judge David Kirkpatrick

The Court ultimately decided that the council got the procedure right and was not required to seek leave before filing the charges.

Can an offender be convicted under s 40 of the Building Act?

The defendants’ lawyer also suggested that because s 40 of the Building Act is an “infringement offence”, a person cannot be convicted if found guilty. He referenced s 375 of the Criminal Procedure Act in making this argument.

On behalf of the council, we noted that not only was that interpretation wrong, it would lead to an absurd result in that all of the convictions against people over the years for offending against the Building Act would have been wrongly entered.

The Judge made short work of this point and, agreeing with us, determined that because leave of the Court was not required to file charging documents, a defendant can be convicted if found guilty.

What this means for our council clients

Unlike in the RMA arena, very few cases have ever gone to Court for s 40 Building Act offending. This is a problem because there is not much guidance for councils to assist with enforcement decision making.

This is why this case is monumental. It answers a couple of key questions, removes uncertainty, and should give councils confidence about the way they prosecute under the Building Act moving forward.

Maximum penalties under the Building Act are set to rise and we can expect to see more cases come through the system in the coming years. This will push Courts to impose more significant penalties, resulting in genuine deterrence and fewer problems (and liability) for councils when things go wrong with building projects.

Well done Auckland Council. The path is now a bit clearer for our other council clients.

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Opinion: Where is NZTA heading? https://ricespeir.co.nz/opinion-where-is-nzta-heading/ https://ricespeir.co.nz/opinion-where-is-nzta-heading/#respond Tue, 16 Apr 2019 08:13:50 +0000 https://ricespeir.co.nz/?p=5328 This article was originally published on NZ Truck and Driver. Call me the black sheep, or Jethro West, of the Speir family. Road Torque readers might recognise the name. Steve Speir, my father, has run Minishifts in Auckland for the past 25 years. Although he probably won’t admit it, Dad learned his trade from my grandfather,…

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This article was originally published on NZ Truck and Driver.

Call me the black sheep, or Jethro West, of the Speir family. Road Torque readers might recognise the name. Steve Speir, my father, has run Minishifts in Auckland for the past 25 years. Although he probably won’t admit it, Dad learned his trade from my grandfather, Dennis, who drove for himself and Stevenson for decades.

Bucking the trend, I became a lawyer.

I have acted both for and against many regulators in the past 10 years and have defended a number of transport companies and drivers for logbook offences, licencing issues and contractual disputes.

With all the publicity around NZTA’s performance issues and “new approach” to regulatory compliance, I thought it would be a good time to reach out to Truck & Driver to provide some insight on where NZTA is heading and what it might mean for transport operators and drivers.

NZTA’s regulatory shake-up in a nutshell

In September 2018 concerns were raised about the regulatory function of the New Zealand Transport Authority (NZTA). The main concern was the backlog of compliance cases, covering vehicle certification, training, licensing, transport operators and drivers. Prior to this, NZTA’s focus was supposedly on education rather than enforcement.

Review of NZTA by Minister of Transport

In September 2018 the Minister of Transport commenced a review of NZTA, led by an external consultant.

The topics for the review included whether the Ministry should have identified performance issues earlier and whether it was adequately resourced. The review is expected to be completed mid-April but it seems inevitable from Ministry of Transport and NZTA comments so far that the answer will be no.

Transport Agency announces it is “getting tough” on enforcement

In October 2018 NZTA announced an extensive review of its open compliance files, and that it was “getting tough” on enforcement. It said that the public could expect an increased number of enforcement actions to be taken.

At a cost of more than $5 million in taxpayer dollars, a law firm in Auckland was engaged to clear a backlog of more than 850 compliance cases that had built up under a model that prioritised education over enforcement.

As at 2 April 2019 there were 309 compliance actions currently underway, the bulk of them relating to transport services including 102 notices of the proposal to revoke/suspend licenses.

When a company or person has its appointment or approval revoked it can no longer perform the activities it was appointed to carry out unless the Court overturns the decision through the appeal process.

Some of the more notable revocations have of course included Stan Semenoff Logging Limited (SSL) and Boss Transport Limited (Boss). Both SSL and Boss have commenced Court proceedings against NZTA in the wake of their revocations and have sought interim relief while they await their day in Court.

In SSL’s case, the High Court on 22 March 2019 took the view that its application for judicial review is arguable and suspended the revocation until further order of the Court.

Similarly, on 21 March 2019, the High Court granted Boss interim relief and prohibited NZTA from taking any further action in relation to its decision to revoke Boss’s Transport Service Licence.

In Boss’ case, in particular, the Court passed comment on the strength of its argument. This must be concerning for NZTA. I also note from Tuesday’s paper that SSL has come out swinging at NZTA’s comments and actions.

Where is NZTA heading?

Comments from NZTA’s lawyer including “…we are going to build to make sure we really demonstrate to the New Zealand public that they can be confident we have this under control” say it all. We can expect NZTA to take more enforcement action in the coming months and years.

In some ways, NZTA needs to be seen taking active steps, in order to shrug a reputation for having “no teeth”.

There are currently 663 open cases and that number could double.

We don’t raise these numbers to scare readers, but rather as a reminder that it is important that transport operators and drivers be vigilant. In the next article in this series, I will outline a few tips and tricks to make sure your compliance performance thinking is up to date. I will also give my opinion on whether or not NZTA have overstepped the mark.

In the meantime, I am happy to take calls from any Road Torque reader who might have a legal compliance question – feel free to pick up the phone.

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Informants, search warrants and drones over Muriwai Valley https://ricespeir.co.nz/informants-search-warrants-and-drones-over-muriwai-valley/ https://ricespeir.co.nz/informants-search-warrants-and-drones-over-muriwai-valley/#respond Mon, 04 Mar 2019 09:40:13 +0000 https://ricespeir.co.nz/?p=5303 Informants, search warrants and drones make a great movie right?  It’s all in a day’s work for our compliance and enforcement team. This month, in a Resource Management Act case we are prosecuting for Auckland Council, the Environment Court allowed evidence – including drone footage – to be used at an upcoming jury trial. Judge…

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Informants, search warrants and drones make a great movie right?  It’s all in a day’s work for our compliance and enforcement team.

This month, in a Resource Management Act case we are prosecuting for Auckland Council, the Environment Court allowed evidence – including drone footage – to be used at an upcoming jury trial.

Judge Kirkpatrick, despite five separate allegations of unlawfulness raised by the defendant, found in the council’s favour – affirming its investigation practices and strengthening the council’s case.

Besides a fascinating factual backdrop, Auckland Council v Mawhinney conveniently summarises the key considerations when applying for search warrants. It also confronts the use of drones in RMA cases (in this case flown by a neighbour, completely independent of council) and provides some great take-home points for all enforcement officers.

The case

The defendant faced fourteen charges under the RMA.  The charges related to what was alleged to be an unconsented cluster of buildings at a forestry block in West Auckland.

The council applied to the Court to introduce evidence at trial that was obtained using a search warrant, which the defendant opposed, arguing that the warrant and subsequent search were unlawful.

The defendant’s case was wide-ranging.  He alleged the search warrant application contained insufficient information and material omissions that made it unlawful.  He also said that because an informant (completely independent of the council) had trespassed on his property by flying a drone over it, leading to the council discovering the alleged breaches of the RMA, that the council’s case was tainted beyond repair.

Council officers were required to give evidence at the pre-trial hearing and showed great composure during cross examination.

The Judge’s decision

After considering all the evidence and legal submissions, the Judge concluded that none of the five grounds argued by the defendant made either the issuing of the search warrant or its execution unlawful.  Therefore, the evidence obtained during the search was not improperly obtained and the Judge allowed it to be introduced at trial.

Why the decision is important for enforcement officers

Besides summarising the balancing exercise that a Court does when deciding whether evidence should be allowed to come in, the case offers a number take-home points for enforcement officers:

  • A council simply has to have a reasonable basis to suspect an offence has been committed when applying for a search warrant under the Search and Surveillance Act 2012. It does not need to know that an offence has in fact been committed as that would defeat the whole purpose of the warrant.
  • Council officers are of course authorised by s 332 of the RMA to go onto any property to determine whether or not the RMA or a rule of a plan is being complied with. However, there is a point when the purpose of the entry changes, which triggers the need for a search warrant.  The determining factor is the underlying purpose for the visit.
  • Execution of a search warrant by four enforcement officers, two dog control officers, a locksmith and two police officers is not unreasonable in certain circumstances (such as this one).
  • It is not clear whether the taking of drone footage by a third party is a trespass but in this case Judge Kirkpatrick didn’t think it was.

The case will now go to trial and the defendant has elected to be tried by a jury.

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Are you a difficult person? https://ricespeir.co.nz/are-you-a-difficult-person/ https://ricespeir.co.nz/are-you-a-difficult-person/#respond Mon, 04 Mar 2019 09:37:28 +0000 https://ricespeir.co.nz/?p=5297 Beware – difficult people pop up everywhere. As litigators, we can spot them.  The difficult person responds to a straightforward insurance issue with a lengthy email referencing the Bill of Rights, the Magna Carta and other irrelevant material with lots of underlining, capital letters and exclamation marks.  They are not focused on the solution.  They…

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Beware – difficult people pop up everywhere.

As litigators, we can spot them.  The difficult person responds to a straightforward insurance issue with a lengthy email referencing the Bill of Rights, the Magna Carta and other irrelevant material with lots of underlining, capital letters and exclamation marks.  They are not focused on the solution.  They focus on the problem – in fact they are obsessed with not only their perceived problem but often go to bat for the wider community.

At Rice Speir, we aim to make the complex simple.  Difficult people strive for the opposite.

It is important that you know how to deal with them so a bad situation isn’t made worse.

Take a look at this short video of our Nathan Speir and Simon Waalkens talking about their recent experiences:

It can be confronting to tell someone what they are doing is wrong and some resistance should be expected.  Don’t play their game – always play with a straight bat.  Try disarming their fire or fury with a smile.

Some people are resistant beyond rational explanation and can cause headaches for anyone tasked with dealing with them.  They embrace social media and turn into what are known as “keyboard warriors” online.

We are talking about persistent and insufferable complainers who will fight you on every possible point and at every stage and who are incapable of compromise.

Tips and tactics for dealing with difficult people

  • Dot your i’s, cross your t’s and always maintain complete procedural integrity.  Keep meticulous records and operate on fact rather than opinion.
  • Don’t fight fire with fire – a smile and a friendly approach is disarming.
  • Remain dignified and professional.  These people may act differently, they may scream, shout and protest.  Treat them with respect just like anyone else.
  • Follow the same processes as you normally would and don’t go above and beyond or escalate matters just because they demand that you should.
  • Keep all communications in writing.  When this is not possible, make sure another colleague is present and the meeting is well documented.
  • Lastly, communicate effectively as a team and don’t be afraid to ask a colleague for a second opinion on a matter.

If worst comes to worst

Health and safety is paramount – work with your team to clearly establish the point at which a person’s behaviour becomes inappropriate and take action.

Have clear procedures and make sure everyone is well aware of steps that may be taken in these situations.

There are some excellent ways to combat keyboard warriors – see our September 2018 article.

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Time to “tidy up” your dangerous, insanitary and affected building policy? https://ricespeir.co.nz/time-to-tidy-up-your-dangerous-insanitary-and-affected-building-policy/ https://ricespeir.co.nz/time-to-tidy-up-your-dangerous-insanitary-and-affected-building-policy/#respond Mon, 04 Mar 2019 07:50:58 +0000 https://ricespeir.co.nz/?p=5301 At the start of a new year I – like many people – have become hooked on Netflix’s cult new show about the art of decluttering. If you haven’t seen “Tidying Up with Marie Kondo” yet, be prepared to fold tea towels like you never knew you could. These tidy up principles don’t just apply…

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At the start of a new year I – like many people – have become hooked on Netflix’s cult new show about the art of decluttering.

If you haven’t seen “Tidying Up with Marie Kondo” yet, be prepared to fold tea towels like you never knew you could.

These tidy up principles don’t just apply at home.  Council officers around the country are right now considering their dangerous, insanitary and affected building policies and asking: “Is ours up to date?”

With the window for adopting an “affected buildings” policy having now closed, we have received a number of calls in recent months from councils about what this all means and how to achieve compliance.

Now is a perfect time to make sure your policies are valid and, most importantly, user friendly.  A policy that is out of date, unwieldy and scary to look at is as bad as having no policy at all.

Maybe it’s time for a bit of a tidy up?

Councils’ obligations in a nutshell

Councils must adopt a policy on dangerous and insanitary buildings within their district.  That policy may be amended or replaced only in accordance with the special consultative procedure in section 83 of the Local Government Act 2002 (LGA).

In 2013, the Building Amendment Act 2013 added a requirement to include affected buildings within a reasonable period following the next review.  As this involves amending or replacing the existing policy, the special consultative procedure is required.

Three years later, a 2016 amendment to the Building Act made councils again look at their policies to remove any reference to earthquake-prone buildings.  The law said that if the amendments did not materially affect an existing policy, then the special consultative procedure in section 83 of the LGA didn’t need to be followed.

Removing any reference to earthquake prone buildings from a policy can be done without materially affecting it.  Highlight, delete and you’re done.  But, adding affected buildings is a different kettle of fish.  It requires some thought and a more robust process.

What it all means for you

Five years on, some councils have found themselves without a valid policy and uncertain about whether or not a special consultative procedure is needed.  The procedure isn’t as scary as it sounds – unlike that wardrobe of yours housing 20 years of regrettable purchases.

All that a council needs to do is:

  • Draft a statement of proposal that outlines the background to the proposal, purposes of the amended policy and a copy of the draft new policy.
  • Draft a brief public notice inviting public (written) submissions on the amended policy (we expect you would be unlikely to receive any). Councils generally leave a period of one month open for submissions to be made.
  • Hold a strategic planning and policy committee meeting where oral submissions can be made by those who have submitted written submissions if they wish.
  • Adopt the policy.

Having been through this exercise with a few councils now, we are well placed to ensure that policies remain up-to-date, user friendly and fit for purpose.

If it’s time for a tidy up of your policies, give them the KonMari treatment (Google it).

 

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All Blacks leadership guru Gilbert Enoka tours NZ with Rice Speir https://ricespeir.co.nz/all-blacks-leadership-guru-gilbert-enoka-tours-nz-with-rice-speir/ https://ricespeir.co.nz/all-blacks-leadership-guru-gilbert-enoka-tours-nz-with-rice-speir/#respond Mon, 04 Mar 2019 07:29:14 +0000 https://ricespeir.co.nz/?p=5313 Rice Speir had the privilege of presenting Gilbert Enoka at North Island and South Island functions for our clients to celebrate dealing with adversity and mental resilience. Enoka is the All Blacks’ leadership manager.  He has a long history of success as a mental skills coach with New Zealand’s corporate and sporting elite and is internationally…

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Rice Speir had the privilege of presenting Gilbert Enoka at North Island and South Island functions for our clients to celebrate dealing with adversity and mental resilience.

Enoka is the All Blacks’ leadership manager.  He has a long history of success as a mental skills coach with New Zealand’s corporate and sporting elite and is internationally renowned for his 18-year history with the All Blacks.

Gilbert shared his key messages:

  • There are no silver bullets or magic solutions
  • High performers don’t need rules…just a strong purpose
  • Success is a lousy teacher
  • Culture eats strategy for breakfast
  • Be at your best when your best is needed.

Best of all – no matter how educated, talented, rich or cool you believe you are – how you treat people ultimately tells all.  Gilbert re-affirmed in my mind the importance of culture in the workplace.  In his words:

“You can have all the strategies in the world, but in the end, what will enable you to overachieve – or underachieve – is your culture. We nourish the All Blacks culture every day by drawing from our rich Maori heritage. In our cornerstone philosophies, the team towers above the individual. You’ll never succeed on your own, but you will be successful as an individual if the team functions well.

As the custodian of the culture, I make sure everyone has a sense of belonging… Too many organisations focus on the vision and values when they should feed a sense of belonging instead.”

Thank you Gilbert.

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