Three councils who sought to have their property rights declared by the High Court over the Three Waters reforms have had their bid rejected. Whangarei, Waimakariri and Timaru District Councils applied to have the Court declare, among other things, those Councils’ rights of ownership in relation to infrastructure assets.

This included seeking a declaration as to the Councils’ exclusive possession of such assets, exclusive ability to prevent interference with those assets, and exclusive ability to manage and operate those assets.

This is one of local councils’ main concerns with the Three Waters reforms, which include intended legislation under which the Three Waters assets, currently owned by local councils or council-controlled organisations, will be transferred to four new statutory Water Services Entities. Legislation to establish those entities has already been enacted.

The Court accepted that it had jurisdiction to make the proposed declarations, given they related to the Council’s rights and status as to its property rights, or important constitutional principles affecting the councils and their communities. However, the Court declined to exercise its discretion to grant that relief, on the basis that:

  • The declarations are expressed in abstract and general terms, which reduces their utility;
  • Granting the relief would infringe the principle of non-interference with the legislative process because they were, in reality, an attempt to influence the legislative process; and
  • The declarations did not serve a useful purpose, as Parliament is aware of the change the reforms will make to democratic governance in respect of Three Waters infrastructure assets and to the councils’ property rights in those assets. The intention of the reforms is to have different arrangements for the Three Waters assets than has historically been the case. The intention is also to provide a funding package but not to compensate for the value of the assets taken.

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