Order 2005
DAME SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 7th day of June 2005.
Present:
THE RIGHT HON HELEN CLARK
PRESIDING IN COUNCIL
Pursuant to section 37ZZZJ of the Local Government Act 1974, Her Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following order.
O r d e r
1. Title—This order may be cited as the Local Government (Opotiki District and Whakatane District) Boundary Alteration Order 2005.
2. Commencement—Subject to clause 22, this order comes into force on 1 July 2005.
3. Interpretation—In this order, unless the context otherwise requires:
affected area means the area described on SO 350818.
4. Boundary alteration—The boundaries of Opotiki District and Whakatane District are altered by excluding
the affected area from Opotiki District and including it in Whakatane District.
5. Representation—(1) The affected area is excluded from the Waioeka-Waiotahi Ward of Opotiki District and is included in the Taneatua-Waimana Ward of Whakatane District.
(2) The affected area is included in the Taneatua Community of Whakatane District.
6. Rating—The system of rating in the affected area will be the same as that in force in Whakatane District.
7. Civil defence—(1) The Bay of Plenty Civil Defence Emergency Management Plan continues to apply to the affected area.
(2) The operative civil defence plan for the Whakatane District Council applies to the affected area in accordance with the Bay of Plenty Civil Defence Emergency Management Plan and is the only operative local civil defence plan to apply in the affected area.
8. Bylaws—(1) The bylaws of the Whakatane District Council apply to the affected area.
(2) The bylaws of the Opotiki District Council cease to apply to the affected area.
9. Transfer of responsibilities—The Whakatane District Council, in respect of the affected area, shall have, and may exercise, and shall be responsible for:
(1) all powers, duties, acts of authority and functions which were previously exercised by the Opotiki District Council or would have been so exercised by it if it had remained in control of the affected area;
(2) all the liabilities, obligations, engagements and contracts that were previously the responsibility of the Opotiki District Council, or that would have been its responsibility if it had remained in control of the affected area; and
(3) all actions, suits and proceedings pending by or against the Opotiki District Council, or that would have been its responsibility if it had remained in the control of the affected area.
10. Vesting of property—All property, real and personal,
in the affected area vested in the Opotiki District Council
is vested in the Whakatane District Council, subject to all existing encumbrances.
11. Title to property—Any reference, express or implied to the Opotiki District Council relating to the affected area, in any instrument or other document, or in any entry or record, made in any register in relation to property vested in the Opotiki District Council, by clause 9 of this order, shall, unless the context otherwise requires, be read as a reference to the Whakatane District Council.
12. Development and financial contributions—(1) Where any resource consent or building consent relating to the affected area includes a condition requiring the payment of
a development contribution under the Local Government Act 2002, and a contribution has been levied before the commencement of this order, the following shall apply:
(a) The Opotiki District Council shall retain all of the development contribution paid; and
(b) where development contributions have been levied before the date of commencement of this order, but not yet paid, these contributions shall be payable to the Opotiki District Council unless they relate in whole or in part to specific works proposed within the affected area. Where development contributions have been levied before the date of commencement of this order, but not yet paid, and these contributions relate in whole or in part to specific works proposed within the affected area then, to the extent that they relate to such works, they shall be payable to the Whakatane District Council.
(2) Where any resource consent relating to the affected area includes a condition requiring the payment of a financial contribution under the Resource Management Act 1991,
and a contribution has been levied before the date of commencement of this order, the following shall apply:
(a) The Opotiki District Council shall retain that part of the financial contribution paid in respect of works identified to take place outside the affected area and shall pay to the Whakatane District Council that part of the financial contribution paid in respect of works identified to take place within the affected area; and
(b) where any financial contribution had been levied before the commencement of this order, but not yet paid, those contributions shall, to the extent that they relate to works identified to take place outside the affected area, be payable to the Opotiki District Council. Where such financial contributions relate in whole or in part to specific works proposed within the affected area, they shall be payable to the Whakatane District Council to the extent that they relate to such works.
(3) All development contributions and financial contributions levied as part of a resource consent or building consent issued after the commencement of this order shall be payable to the Whakatane District Council.
13. Assets and liabilities—(1) In every respect not affected by clause 12, the apportionment of assets and liabilities of the Opotiki District Council relating to the affected area shall be determined by agreement between the Opotiki District Council and the Whakatane District Council.
(2) If the Opotiki District Council and the Whakatane District Council cannot reach agreement on the apportionment of assets and liabilities, then it shall be determined by the Local Government Commission pursuant to clauses 28 to
31 of Part III of the Schedule 3B of the Local Government Act 1974.
14. Loans—Subject to section 37ZZZN and clause 41 of Schedule 3B of the Local Government Act 1974, any rate made and levied to meet the annual charges in respect of any loan secured over the affected area shall continue to be made and levied on the same basis as applied before the commencement of this order.
15. Creditors—The rights or interests of creditors of the Opotiki District Council are not affected by this order.
16. Loan liabilities—Any loan liabilities relating to the affected area shall be apportioned according to Part III of Schedule 3B of the Local Government Act 1974.
17. Special funds—Any special funds transferred to the Whakatane District Council following the apportionment of assets and liabilities under clause 12 of this order shall:
(1) be expended only for the purpose for which they were set aside; and
(2) after provision has been made for all liabilities, be expended for the benefit of the affected area.
18. Petroleum tax revenue—Clause 59 of Schedule 3B to the Local Government Act 1974 applies to the apportionment of petroleum tax revenue.
19. Resource management—(1) In accordance with section 81 of the Resource Management Act 1991, the plan or proposed plan of the Opotiki District Council that applied to the affected area before the alteration of boundaries continues to apply to the affected area and is, in so far as it applies to the affected area, deemed to be part of the plan or proposed plan of the Whakatane District Council.
(2) Where, before the commencement of this order, and in relation to the affected area, any application for a resource consent or any requirement for a designation or a heritage order had been made to Opotiki District Council by any person pursuant to any provision of the Resource Management Act 1991, the following apply:
(a) Where no hearing by the Opotiki District Council or any committee of the Opotiki District Council has begun on any such application or requirement, the application or requirement is deemed to have been made to the Whakatane District Council and shall be dealt with by the Whakatane District Council accordingly.
(b) Where such an application or requirement has
been either partly or fully heard or considered by
the Opotiki District Council but no decision or recommendation thereon has been given, the application shall be heard or considered again by
the Whakatane District Council or, as the case may require, a committee or delegate of the Whakatane District Council.
(c) Where such an application had been heard or otherwise disposed of by the Opotiki District Council and either the time for any appeal against such decision has not expired or notice of appeal has been given, any such appeal is deemed to be against the Whakatane District Council.
(3) For the avoidance of doubt, it is declared that any declaration of the Environment Court, pursuant to section 313 of the Resource Management Act 1991 relating to the affected area that was made before the commencement of this order and that affects any functions, duties or powers
of the Opotiki District Council in relation to the affected area, shall apply to the Whakatane District Council.
20. Building consents—Where any building consent for any building within the affected area has been issued by the Opotiki District Council prior to 30 June 2005 and no corresponding Code Compliance Certificate has been issued for that building, the responsibility for ensuring that the requirements of the Building Act 2004 are met transfers to the Whakatane District Council with effect from 1 July 2005.
21. Records—The Opotiki District Council shall, on the date this order comes into effect, transfer every property record it holds for each of the properties within the affected area and any other land, asset or other record it holds that relate in any way to the affected area, to the Whakatane District Council.
22. Transitional provisions—(1) For the purposes of:
(a) the preparation of annual plans under section 95 of the Local Government Act 2002 for the year beginning on 1 July 2005; and
(b) the setting of rates under the Local Government (Rating) Act 2002 for the financial year beginning on 1 July 2005,
this order comes into force on the day of the publication
of this order in the New Zealand Gazette.
(2) For the purpose of setting rates for the financial year beginning on 1 July 2005, information on the district valuation roll of the Opotiki District Council relating to the affected area is deemed to be:
(a) included on the district valuation roll of the Whakatane District Council; and
(b) excluded from the district valuation roll of the Opotiki District Council.
23. Schedule 3B of the Local Government Act 1974—Except as otherwise provided for in this order, the provisions of Schedule 3B of the Local Government Act 1974 apply in respect of this order.
DIANE MORCOM, Clerk of the Executive Council.