1. Background Te Horopaki
1.1
Approval is sought to submit the following report
to the Canterbury Regional Landfill Joint Committee meeting on 07 April 2025:
9. Amendments
to Transwaste Canterbury Limited Constitution and Shareholders Agreement.
1.2
The reason, in terms of section 46A(7) of the
Local Government Official Information and Meetings Act 1987, why the report was
not included on the main agenda is that it was not available at the time the
agenda was prepared.
1.3
It is appropriate that the Canterbury Regional
Landfill Joint Committee receive the report at the current meeting.
2. Recommendation Te Tūtohu
2.1
That the report be received and considered at
the Canterbury Regional Landfill Joint Committee meeting on 07 April 2025.
9. Amendments
to Transwaste Canterbury Limited Constitution and Shareholders Agreement.
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9. Amendments
to Transwaste Canterbury Limited Constitution and Shareholders Agreement
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Reference Te Tohutoro:
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25/596198
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Responsible Officer(s) Te Pou Matua:
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Natasha
McDonnell, Democratic Services Advisor
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Accountable ELT Member Pouwhakarae:
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Brent
Smith, General Manager City Infrastructure
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1. Purpose and Origin of the Report Te Pūtake Pūrongo
1.1 The
purpose of this report is for the Canterbury Regional Landfill Joint Committee
to receive and consider resolutions arising from the completion of the
Transwaste Canterbury Limited Governance review.
2. Officer
Recommendations Ngā Tūtohu
That the Canterbury
Regional Landfill Joint Committee:
1. Receives the information in the Amendments
to Transwaste Canterbury Limited Constitution and Shareholders Agreement Report.
2. Adopts the amended Transwaste Canterbury Limited Constitution and
Transwaste Canterbury Limited Shareholders Agreement.
3. Alongside Waste Management New Zealand, jointly appoints Grant
Miller as independent chair of Transwaste Canterbury Limited, effective upon
the date in which Transwaste Canterbury Limited reaches shareholder endorsement
in entirety.
4. Delays the appointment of the vacant Transwaste Canterbury Limited
directorship until after the 2025 Local Government Elections.
3. Detail Te Whakamahuki
Background
3.1 The Board of Transwaste Canterbury Limited (TCL) engaged BDO –
Phillip Roth, to undertake a comprehensive governance review of the structure
and effectiveness of TCL.
3.2 The
Governance review team has previously provided a report to the Canterbury
Regional Landfill Joint Committee (CRLJC) on its findings, and next steps being
to review the Constitution and Shareholders Agreement and undertake a
recruitment process for a new independent chair.
3.3 Buddle
Findlay has provided some amendments to the Constitution and the Shareholders
Agreement for consideration, and these have been reviewed and approved by the
TCL Board and Waste Management (WM) New Zealand. Council has obtained
independent legal advice from Anderson Lloyd in relation to the proposed
amendments, and the advice is that the proposed amendments to the Constitution
and Shareholders Agreement do not make any material changes to the current
governance framework for Transwaste, and should not, therefore, pose any
material issues for Council.
3.4 TCL
is now seeking CRLJC approval of these amendments.
3.5 One
of the key recommendations for the governance structure of TCL is the reduction
of Group A (WM New Zealand) and Group B directors (CRJLC appointed) from four
to three each, and the adoption of an independent chair.
3.6 Sheffield
Executive Recruitment publicly advertised the role of independent chair and
facilitated the short listing and interviews of candidates. Mr Grant Miller was
recommended as the preferred candidate from this process.
Considerations
3.7 It
is noted that Mr Miller is a current CRJLC appointed director. Mr Miller will
tender his resignation as a CRLJC appointed director upon appointment to the
independent chair role. This has been considered by Buddle Findlay Lawyers as
appropriate. The CRLJC has the option of either:
3.7.1 Appointing an interim
member to replace Mr Miller until the 2025 local body elections.
3.7.2 Delaying the
appointment to replace Mr Miller until after the 2025 local body elections
(preferred option).
Delegations
3.8 The
Canterbury Regional Landfill Joint Committee holds the delegation to adopt the
amended Constitution and Shareholders Agreement, i.e., individual Councils do
not need to approve any change to TCL’s constitution (and therefore an
amendment of the Shareholders Agreement).
3.9 This
delegation comes from two sources, as well as TCL’s constitution which
does not specifically refer not contain any provision regarding the process
required for its amendment:
3.9.1 The Committee’s
Constituting Agreement section 18b grants the delegation from the Councils to
the Committee, in respect of the Committee exercising its voting rights
attached to their shares.
3.9.2 The Companies Act
section 32(2) grants the power to amend the company’s constitution by way
of special resolution between the shareholders.
3.10 The TCL
Constitution has historically been amended (in 1999 by way of special
resolution, signed by Canterbury Waste Services Limited, and by the Committee
itself via the Chairperson and the Committee Secretary) as consistent with the
advice above.
Attachments
Ngā
Tāpirihanga
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No.
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Title
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Reference
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Page
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a ⇩
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Memorandum of Understanding - 3.9.1998
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25/617872
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8
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b ⇩
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Comparison of new version of Constituting Agreement against
original
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25/637845
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62
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c ⇩
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Comparison of new version of Share Holders Agreement against
original
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25/637852
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94
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d ⇩
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Transwaste Board - special resolution revoking and adopting
constitution
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25/637853
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118
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e ⇩
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Transwaste Canterbury Limited - Constitution
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25/637854
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120
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f ⇩
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Transwaste Canterbury Limited - Shareholders Agreement
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25/637856
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144
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Signatories Ngā Kaiwaitohu
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Authors
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Natasha
McDonnell - Democratic Services Advisor
Elizabeth
Neazor - Manager Legal Service Delivery
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Approved By
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Alec McNeil -
Manager Resource Recovery
Lynette Ellis
- Head of Transport & Waste Management
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