Decision about Councillor Kelliher's application

Our view about Cr Kelliher’s financial interest in the decisions

Cr Kelliher’s application states that he is a sheep and deer farmer. He lives on a family farm of about 400 hectares. The farm is owned by the company Springvale Downs Limited. Cr Kelliher and his wife are both directors of Springvale Downs Limited, and each have a 3% shareholding. A family trust, the KJ Investment Trust, owns the remaining 94% of the shares in Springvale Downs Limited. Cr Kelliher and his wife are trustees of the KJ Investment Trust.

The Water Permit Plan Change (WPPC) and Cr Kelliher

Springvale Downs Limited holds two deemed permits, permit numbers 2000.243.v1 and 2000.265.v1. The combined total allowed flow of both permits is 400,000 litres per hour and 288,000,000 litres per month. This is divided between two sites. Cr Kelliher’s application states that the actual usage is likely to be about 50% of the maximum consented volume; it is rare that the maximum consented volume is taken. The peak amounts are only at times of high rainfall and are subject to meeting residual flows at each site. The water is used to irrigate pastures and winter feed crops.

Through Springvale Downs Limited, Cr Kelliher is deemed to have a financial interest in the WPPC. He is prohibited from participating in the decision, unless we grant him a declaration.

The Omnibus Plan Change and Cr Kelliher

Dairy farmers are the farmers most affected by the Omnibus Plan Change, and Cr Kelliher is not a dairy farmer. He does not graze cattle, and so will not need to install additional fencing or apply for the type of consent proposed for intensive winter grazing.

Cr Kelliher submitted that any financial interest he has in the Omnibus Plan Change is “de minimis” as he does not graze any of the animals affected by the changes. He told us that he does not intend to graze, intensively or otherwise, cattle on his property. He told us that this is not part of the family’s short or long-term planning for the farm, so he is “highly unlikely” to turn his mind to his own farm when discussing and voting on the Omnibus Plan Change.

Based on the information provided, we have reached the view that Cr Kelliher has no reasonable expectation of financial gain or loss from the Omnibus Plan Change. He does not need an exemption to participate in the decision.

Decision not to grant a declaration in respect of the Water Permit Plan Change

Cr Kelliher asked us to grant a declaration on the basis that it would be in the interests of the electors or inhabitants of the area that the non-participation rule should not apply, for two reasons:

  • his Dunstan constituents will not be adequately represented if he cannot participate; and
  • his special expertise will not otherwise be before the Council table, because it is not held by the other councillors.

Cr Kelliher’s application states that:

  • he has lived in the Central Otago region, at Springvale near Alexandra, for 42 of his 47 years;
  • his family have been farming the property since 2003, and before that a portion of the property was owned by his parents;
  • he previously served on the Council from 2013-2016;
  • he is the only long-term and rural councillor currently serving the Dunstan constituency. The other two councillors are newer to the region and Cr Kelliher says that they do not possess his long-term knowledge of the area and understanding of the wants and needs of rural constituents;
  • he has extensive knowledge of the region’s water infrastructure and water use, which is supported by his background in civil engineering; and
  • he has been involved with the community in water issues since 2003. He has previously served in a number of community roles and is a former Deputy Chairperson of the Manuherikia Catchment Water Strategy Group and a former Chairperson of the Manuherikia Sub-Committee of the Water Users Group. He is also a former director and former acting Chairperson of Manuherikia River Limited. These roles have given him a unique community perspective and a deep understanding of his community’s needs and wants.

Given the above, Cr Kelliher submitted that he has extensive knowledge of the Dunstan constituency and that this means that he is well attuned to the needs and wants of the electors. He also says that his role on the Manuherikia Catchment Water Strategy Group has given him specialist knowledge of the catchment’s all-encompassing community direction, which was over a long period of time. This provides him with special expertise that is not held by other councillors, and which is important given the Council’s intention to work with these catchment groups to progress the Water Plan changes in the coming years.

We appreciate that Cr Kelliher has experience and knowledge of the matters covered by the WPPC. However, we are not satisfied that the statutory ground for granting a declaration is met in this instance. Based on the information provided, we do not consider that the constituents of Dunstan will not be adequately represented by the other two Dunstan councillors, or that the Council won’t have enough experience and knowledge around the table if Cr Kelliher cannot participate.

The other grounds in the Act for granting a declaration is that the application of the non-participation rule would impede the transaction of business by the Council. Cr Kelliher did not submit that this grounds was met. The Council will still be quorate even though two councillors will be unable to participate due to having a financial interest in the decision. We do not consider that the application of the rule could unduly distort the way in which the Council deals with the decision.

For these reasons, and based on the information provided, we decline to grant Cr Kelliher’s application for a declaration in respect of the Water Permit Plan Change decision.