25 Sep 2012
Delegations – It's All About the Paperwork
Have you got your delegations register in order? Numerous statutes give Councils specific powers to delegate to committees, subcommittees or individual officers. This is an efficient way for decisions to be made. But, unless delegations are made and recorded clearly, problems can arise.
Issues about the correct delegated authority often occur in Building Act prosecutions. Did the council officer who issued the notice to demolish the "shed" in the Amor case have the appropriate delegated authority to do so? Did the Chief Executive of the Council in the Wanaka Gyms case have delegated authority to issue a notice to fix? And now, in Waimate District Council v Williams & Anor, did the Council's Chief Executive need or have delegated authority to begin a prosecution (lay an information) under the Building Act 2004?
What does the latest case say?
In the Waimate District Council case, both defendants had been charged with failing to apply for a certificate of acceptance after doing building work without consent. They failed to remedy that situation through compliance with a notice to fix. Each charge (or information) had been sworn by the Council's Chief Executive. However, the defendants argued that under the Building Act 2004, the Council should have delegated the power to lay an information to its Chief Executive and no specific delegation had ever been made. They argued that the informations were nullities and should be dismissed.
The Council argued that as it could only swear an information through a natural person, the Chief Executive was the lawful agent of the Council and did not require delegated authority. It also argued that section 42 of the Local Government Act 2002 defined the powers of a Chief Executive and this included the power to prosecute offences on its behalf. However, if delegation was required, the Council argued that such a delegation had been made in its procedures manual. Failing that, if no such delegation had been made, then section 204 ("the want of form" provision in the Summary Proceedings Act 1957) applied and the prosecutions could continue.
The District Court did not find any of the Council's arguments persuasive. It agreed with the defendants and dismissed the charges.
The Judge noted that under section 377 of the Building Act 2004 there is a very small class of legal persons who may swear informations for offences. This contrasted with the Building Act 1991, which permitted any person to lay an information. Because the Building Act 2004 specifically contemplates delegation of powers by a territorial authority (ie section 232 and clause 32 of Schedule 7 of the Local Government Act 2002) then what is required is a delegation of the power to swear an information to a natural person to act on its behalf. This meant that there must be a deliberate and formal passing of authority from the Waimate District Council to its Chief Executive.
The Judge considered whether section 42 of the Local Government Act 2002 provided authority for the Chief Executive to swear an information on behalf of the Council. (For example, section 42(2) sets out the matters for which the Chief Executive is responsible. This included ensuring that all responsibilities, duties, and powers delegated to him or her or to any person employed by the Council or imposed or conferred by an Act, regulation or bylaw are properly performed or exercised.)
The Judge said that section 42 does not confer any specific power vested in the Council from that Council to the Chief Executive, "let alone the specific power relating to swearing an information on its behalf".
The Judge also considered whether there is any difference between administrative acts and more substantive executive functions, and whether section 42 is confined to administrative acts. Referring to Justice French's decision in the Wanaka Gyms case, the Judge stated that there is a distinction between the day to day administrative functions of a territorial authority that relate to its management, and the specified and restricted powers conferred on it. Judge Maze noted that "The former purely administrative functions of management, which do not require use of special powers, rest, under section 42 of the Local Government Act, in the Chief Executive Officer. Where, however, there are special powers restricted to the territorial authority itself, then a special delegation must be required." Further on in the judgment, Judge Maze noted that laying an information requires the exercise of a discretion to charge a defendant and it is not merely administrative.
The upshot of this analysis was that a "special and specific delegation" of the power to lay an information was required. The Council's Building Consent Authority Management procedures did not contain such a delegation.
Finally, the Court considered whether section 204 of the Summary Proceedings Act might apply. This provision allows a prosecution not to be set aside "by reason only of any defect, irregularity, omission or want of form, unless the Court is satisfied that there has been a miscarriage of justice". Judge Maze found that there was an error of substance and not of form - the error was one that struck at the very heart of the ability to prosecute at all. Section 204 could not save the prosecution in this case.
What does this case mean for you?
It's a timely reminder to always keep your delegations up to date and your paperwork in order. How would you answer the following questions:
- Are you certain that you have made specific delegation of those substantive powers that are conferred on the Council and that are able to be delegated?
- Do you have a clear and concise record of these delegations, and if they have been sub-delegated, do you have a record of the sub-delegations?
- Do you have a process for reviewing your delegations when position descriptions in your organisation changes?
- Do you have a process for reviewing your delegations when a statute is repealed or amended, which may change existing delegations or result in new delegations being needed? (We note this may be particularly relevant in light of the Building Amendment Act 2012, of which many of the provisions came into force on 13 March 2012.)
We are able to help you deal with any of these issues including updating your current delegations. Please feel free to call us.