21 November 2006

Stadium Aotearoa: the long-term council community plan

I've previously analysed why this decision should be incorporated in the City's long-term council community plan. See: > LAWS179: Stadium Aotearoa From my discussion with an officer about a LGOIMA request, the City is, I think, going to rely on the following provision in their LTCCP in the Strategic Milestones section of the part on "Arts, Community and Recreation":
Theme: Global city Auckland is a youthful, cosmopolitan and equitable global city. It is a great place to live and is welcoming of new migrants and businesses. Our diverse communities, and pioneer and distinct Pacific heritage, give us a special identity in the world.Auckland’s vitality and our special identity create social, cultural and business opportunities. Milestones: ... 6. Contribute to regional, national and international facilitiesWork with other external parties to develop regional, national and international facilities that attract visitors, boost the local economy and are a source of pride for all Aucklanders. a) Work with stakeholders to redevelop Eden Park to cater to 60,000 patrons by 2010 b) Work in partnership with others to develop the business case for joint funding of an internal-scale convention centre. Milestones to be finished by: [a)] 2010 [b)] 2007 Who is the council working with: [a)] Eden Park Trust Board [b)] Committee for Auckland (etc)
The narrative blurb at the front under “Key Decisions” also describes the following new projects:
- committing $100 million to create some amazing regional, national, and international facilities such as a redeveloped Eden Park and/or international convention centre
And in the “Descriptions of new projects”:
- contributing to regional, national and international facilities (such as a redeveloped Eden Park and/or a convention centre).
And further detail provided:
Name of Project: Contributing to regional, national and international facilities (such as Eden Park or a convention centre) Description: By working with other external parties the council will be able to help contribute towards creating some amazing regional, national and international facilities, which would attract more visitors, boost the local economy and be a source of pride for Auckland is. The draft long-term plan provided for a $50 million contribution towards international facilities for the city, such as the redevelopment of Eden Park and/or an international convention centre and signalled consideration or further $100 million. On 30 June 2006 the Eden Park Trust Board announced a $320 million plan to revamp Eden Park for the 2011 Rugby World Cup nearly double preliminary estimates. Auckland City increased the provision for international facilities, recognising the community facilities to be gained from the Eden Park development, and added a $50 million to additional transport initiatives to provide for improved traffic and pedestrian movement in the vicinity of the park. Key examples of a international facilities are: - a redeveloped Eden Park Eden Park needs to be redeveloped to cater for 60,000 patrons by 2010 for the Rugby World Cup in 2011. Total development cost would be considerably higher than the council's potential contribution and so this redevelopment would require working in partnership with other stakeholders. They council could contribute a certain amount in the form of a grant or a loan, but has not yet committed to doing so. - an international convention centre… Gross cost (before inflation): $100 million Contribution to the vision: Big city baseline - infrastructure and networks
There doesn’t appear to be any separate notation for stadia in the spending or asset information. Or in the three-year capital expenditure plans. But there is again reference to the upgrade of Eden Park in the narrative on “Events” (but no provision for capital expenditure). I think it must be embedded in the “Events organisation, facilitation and sponsorship” line item. The following entry is also found in “Significant Assumptions”:
6. The form of investment in international facilities has not been determined. While it has been treated as capital expenditure in this document, it may be equity in an entity, a loan, the acquisition of a fixed asset, a mix of all three or some other alternative. The final form of the investment will depend on the outcome of negotiation with the parties involved. Given the uncertainty, the investment had not been depreciated, consequential operational expenditure recognised or, as stated earlier, revalued. The impact of not depreciating this asset is not considered material.
Any injunction might then depend on whether the decision is “explicitly provided for” in its LTCCP in section 97(2):
(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.
I think it is not credible to say this decision is “explicitly provided for”, especially given the explicit complementary references to Eden Park. I seriously doubt the “such as” reference will be enough to incorporate reference to other options. Any holistic reading points to only one option being on the table: namely Eden Park. Alternatively, any putative provision for an international stadium, in any event, probably breaches the requirements of section 93(8) & (9) for the detail required in the LTCCP:
(8) A local authority must, in complying with the requirements of this Act in relation to the preparation and adoption of a long-term council community plan, act in such manner, and include in that plan such detail, as the local authority considers on reasonable grounds to be appropriate. (9) A local authority must, in deciding what is appropriate for the purposes of subsection (8), have regard to— (a) the provisions of sections 77, 78, 79, 80, 81, 82, 83, 84, 96, 97, and 101; and (b) the significance of any matter; and (c) the extent of the local authority's resources.
Again, although this is (principally) a matter for the judgement of the local authority, the City cannot credibly claim that the reference to international facility (along with explicit and implicit references to the upgrade of Eden Park) can be read to cover a brand new stadium on the waterfront. I stand by my view that this decision / projects is not provided for in the long-term council community plan and is required, as a matter of law, to be specifically consulted on through the special consultative procedure. A couple of other things: - Apparently someone is mounting an injunction application (I don't know who). - The City are adamant that the present community engagement process is not "consultation"; it is merely the seeking of views so the councillors can take account of community views (under section 78). Odd. No doubt because the present process would not meet the principles of consultation in section 82, particularly the requirements about information and reasonable opportunity to present views.

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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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