Council’s authority to levy Harbour Facilities Charge expired

Local Government
Legislation:
Ombudsmen Act 1975
Related legislation:
Harbours Act 1950,
Local Government Act 1974,
Resource Management Act 1991
Legislation display text:
Ombudsmen Act 1975; Local Government Act 1974; Resource Management Act 1991, Harbours Act 1950
Agency:
Local Authority
Ombudsman:
Hon Anand Satyanand
Case number(s):
A4873
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Imposition of ‘harbour facilities charge’—bylaw made pursuant to legal authority which had expired—s690A Local Government Act 1974, ss 33 and 427 Resource Management Act 1991

The complaint in this case was that a local authority had acted without legal authority in imposing a ‘Harbour Facilities Charge’. The local authority relied on an Order in Council which authorised it to manage the harbour. The Order itself had been made under sections 8A and 165 of the Harbours Act 1950 and provided the necessary authority for the local authority to make bylaws relating to the management of the harbour. A bylaw relating to the Harbour Facilities Charge had been made pursuant to a general fees and charges bylaw made under section 690A of the Local Government Act 1974. The local authority was of the view that the transitional provisions of section 427 of the Resource Management Act 1991 provided for existing grants of control under the Harbours Act 1950 and bylaws relating to such control to remain in force until 30 September 1996.

The investigation disclosed that section 690A of the Local Government Act authorised the levying of charges only where a local authority had legislative authority to do that thing in respect of which the charge in question is levied. In this case, the local authority claimed to have the necessary authority under section 427 of the Resource Management Act. However, section 427, which saved the local authority’s powers to manage the harbour had expired on 30 June 1992.

On this basis, the view was formed that unless the powers to manage the harbour had been transferred to the local authority  under section 33 of the Resource Management Act 1991, it had had no legal authority to administer the harbour since 30 June 1992 and therefore could not rely on section 690A of the Local Government Act to levy the Harbour Facilities Charge.

Accordingly, the complaint was sustained and the local authority withdrew demands for payment of the charge.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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