23 November 2006

Stadium Aotearoa: the injunction

Bill Hodge was on the radio discussing the likely outcome of the injunction: > NatRadio: Stadium Injunction The gist of his comments generally reflect the legal position on local government consultation. However, there are a couple of points which should be clarified. A local authority’s obligation to take account of community views under section 78 does not, by itself, require that they consult. In particular, section 78(3) expressly says: "A local authority is not required by this section alone to undertake any consultation process or procedure." Looking more broadly at local authority decision making, it’s clear there are two distinct tiers of decision making: 1. Decisions generally. Section 78 requires that local authorities take account of community views. However, a local authority is entitled to make a judgement about how this is to be done and to what extent. It may be that the local authority can take account of community views simply asking themselves what they, as citizens, would think. In other cases, they could ascertain community views by other means such us talking with their citizens, running focus groups, or opinion polls, listening to delegations or reading correspondence from their community. Or the local authority may formally consult (if they decided to formally consult, then they would be obliged to undertake that consultation in accordance with the principles of consultation, but otherwise those principles will not apply). But ultimately the decision about whether they should consult lies with them. The only way to challenge a failure to consult under this section is to argue the local authority made a bad judgement. This is usually very difficult and requires the decision be "highly unreasonable" or "irrational". However, it may be possible in this case because local authorities are required, amongst other things, to comply with this obligation "largely in proportion to the significance of the matter affected by the decision" (section 79). Obviously this is a significant decision in relation to which one would expect a high degree of consideration of community views. 2. Significant decisions. A higher and more formal degree of public participation is required for "significant decisions". Section 97 requires that certain significant decisions, such as a decision to "commence ... a significant activity" or to "construct a strategic asset", only be taken if they are "explicitly provided for in the local authority’s long-term council community plan". This is the paramount council planning document and sets out their vision and proposed key activities for the next 10 years. A local authority is required to assess the significance of any decision by reference to their own significant policy. Clearly, a decision of this nature is significant. If the decision is not explicitly provided for in the long-term council community plan, the local authority must amend its plan through the special consultative procedure, that is, a formal decision-making process which sets out mandatory information requirements, a 1 month period for written submissions, and oral submissions directly to the local authority (section 83). (In this case, it may only take 7-8 weeks.) Auckland City is arguing that the waterfront stadium decision is already incorporated into its plan because there is reference to the following activity:
- contributing to regional, national and international facilities (such as a redeveloped Eden Park and/or a convention centre).
However, in my view, tt is simply not credible to say that waterfront option or this decision is "explicitly provided for", especially given the explicit complementary references to Eden Park. As Bill Hodge noted, the waterfront option has not been on the table or incorporated into the long-term council community plan. Auckland City cannot simply retrospectively squeeze this "fresh" option into the existing pigeonhole of an upgrade of a stadium in a completely different location.

1 comment:

Rich said...

Just wondered if you were going to comment any more on this? I realise it's probably a bit academic now that they're going for another site (and presumably going through LGA/RMA procedures for that project).

I heard Bill Hodge describe the process (of enabling legislation) as "unconstitutional". I wondered if this was because:
- the Local Government Act is considered to have some kind of basic law status and shouldn't be lightly amended

- the planned enabling act would have retrospective effect. (how?)

- it's considered constitutionally improper to carve out exceptions to legislation for a specific purpose (but isn't that how they built the railways?)

- some other reason?

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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