14 November 2006

Stadium Aotearoa - letter to Minister and the Mayor

Below is my letter to the Trevor Mallard and Dick Hubbard summarising my concerns about the decision-making process: Kia ora Minister and Your Worship I am writing to you both to express my concern about the present decision-making process for the stadium options in Auckland. I am a strong supporter of downtown stadium option. However, I am particularly concerned that the decision to adopt a particular option is to be made by the City within 11 days. In my view, this process does not adequately allow the community to have their say on the proposal and is in breach of the City’s decision-making obligations under the Local Government Act 2002. I urge you to extend the period for making the decision and allow the public to be consulted in accordance with the City’s obligations under the Local Government Act 2002. As you know, local authorities may not take certain decisions unless they are provided for in their long-term council community plan. Section 97, LGA 2002 provides: s97 Certain decisions to be taken only if provided for in long-term council community plan (1) This section applies to the following decisions of a local authority: (a) a decision to alter significantly the intended level of service provision for any significant activity undertaken by or on behalf of the local authority, including a decision to commence or cease any such activity: (b) a decision to transfer the ownership or control of a strategic asset to or from the local authority: (c) a decision to construct, replace, or abandon a strategic asset: (d) a decision that will, directly or indirectly, significantly affect the capacity of the local authority, or the cost to the local authority, in relation to any activity identified in the long-term council community plan. (2) A local authority must not make a decision to which this section relates unless— (a) the decision is explicitly provided for in its long-term council community plan; and (b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84. The present waterfront proposal is not provided for in the City’s long-term council community plan. Clearly, it is a decision to which section 97 applies: it is a decision to commence a “significant activity” and/or a decision to construct a “strategic asset”. (The proposal is obviously a proposal of “higher significance” under the City’s significance policy. The term “activity” has a broad definition under the LGA 2002 and includes the provision of facilities and amenities and also regulatory and other government functions, ie whether or not the City will ultimately construct the stadium does not alter the fact the decision to support it is commencing a significant activity. Also, a decision not to adopt the waterfront stadium is also an decision to commence a significant activity because section 76(4) defines a “decision” to include a decision not to take any action.) In my view therefore, the City is required to amend its long-term council community plan to provide for this decision. As you will be aware, that requires public consultation under the special consultative procedure. The present expedited decision-making process is therefore flawed and does not accord with the City’s legal obligations under the LGA 2002. An “in principle” commitment and later public consultation is also flawed in my view. The government has made it clear that a decision one way or other needs to be made in the next 11 days. Committing to one option and then consulting the public would be perfunctory and amount to the predetermination of the decision. A failure to properly consult will place the ultimate proposal at risk of a legal challenge. I presume the legislation proposed by the government does not involve the validation of defective decision-making processes under the LGA 2002. Public consultation under the special consultative procedure could be undertaken and completed prior to Christmas, without unduly delaying the proposal. I urge you to allow adequate time for this important decision and to ensure the community is able to participate in it, as they are legally entitled. Regards Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington, Government Buildings, 15 Lambton Quay, PO Box 600, Wellington, New Zealand [ tel +64 (4) 463 6364 ] [ fax +64 (4) 463 6365 ] [ mob +64 (21) 684 544 ] [ dean.knight@vuw.ac.nz ] [ www.vuw.ac.nz/law ]


Rich said...

chbI hate to dispute with a professor of law - nespecially when I *don't* actually want the stadium, but:

"A failure to properly consult will place the ultimate proposal at risk of a legal challenge. I presume the legislation proposed by the government does not involve the validation of defective decision-making processes under the LGA 2002"

You wanna bet? I think that's exactly what they'll do.

I don't even think that it's a particular abuse to do this. Surely what they are doing is removing the delegated authority of a local council to decide planning issues and placing it directly (for this project only) in the hands of parliament. The timeline is:

- the councillors of Auckland agree (in principal and subject to consultation) to the stadium
[I'd note here that the councillors, like anyone else, surely have a democratic right to express their opinions]

- parliament passes the Boondoggle Aotearoa Act (sorry Stadium Aotearoa Act) which removes the project from the normal processes of decision and grants it explicit approval

- any consultation by the council becomes moot as they won't be making a "decision" on the stadium

Where's the retrospectivity in that?

Dave said...

Thank you for this legal clarification. It appears that if the Government pushes ahead with this stadium without awaiting the full consultation process then, once again, they are breaking the law. - Dave.

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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