15.3.3 Council instigated legal proceedings, including prosecutions
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The council’s commitment to acting as a model litigant is especially important when instigating legal proceedings.
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The council’s most common legal proceedings are prosecutions and enforcement actions for non-compliance with regulatory requirements, e.g. a breach of a bylaw, resource or building consent.
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In considering whether to bring an enforcement action or to prosecute, the council adopts an escalated approach, i.e. an enforcement officer will assess the nature of the non-compliance and, in particular, whether it was intentional.
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In deciding whether to prosecute and throughout the prosecution, the council complies with the Solicitor-General’s Prosecution Guidelines which aim to ensure all prosecution processes are open and fair, and reflect the public interest [1].
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Elected members should not get involved in decisions on individual prosecutions and enforcement actions. This does not prevent elected members from engaging in the council’s overall policy on prosecutions.
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Generally, the council will prosecute cases of intentional non-compliance or recidivist or serious non-compliance (where there is serious impact or harm caused). Where the non-compliance is non-intentional, the council may impose low level sanctions and require the non-compliance to be remedied instead of prosecuting.
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The council’s prosecuting lawyers have particular professional obligations [2] (in addition to their general professional obligations), including presenting the prosecution case fully and fairly and with professional detachment.