13 November 2006

Stadium Aotearoa

I should say I’m a big rugby fan and, while living in Auckland, we had season tickets at Eden Park. However, I fully support the idea of finding a downtown stadium site (although I have said for a long time that the Carlaw Park site must be a better option). As much as I liked the history and quirkiness of Athletic Park (I played on it a number of times and even once scored a try there!), the rugby and events experience from a logistically-sound, downtown stadium is superb.

But... Mallard is dreaming if he thinks that the Auckland City Council and Auckland Regional Council can make a decision about the stadium in 2 weeks. There’s a little legal obligation called participatory democracy that will stand in their way (quite apart from the question of any Resource Management consents). I’ll explain.

First, for all decisions, local authorities are required to take account of community view under section 78 of the Local Government Act 2002:

s78 Community views in relation to decisions

(1) A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.

(2) That consideration must be given at—

(a) the stage at which the problems and objectives related to the matter are defined:

(b) the stage at which the options that may be reasonably practicable options of achieving an objective are identified:

(c) the stage at which reasonably practicable options are assessed and proposals developed:

(d) the stage at which proposals of the kind described in paragraph (c) are adopted.

(3) A local authority is not required by this section alone to undertake any consultation process or procedure.

(4) This section is subject to section 79.

However, section 79 allows local authorities to make judgements about the extent of compliance with this obligation “largely in proportion to the significance of the matters affected by the decision”.

The upshot is that local authorities must take into account community views but the method to achieve this and extent to which it is achieved is a matter of judgement for them. This section does not require that they consult – community views may be taken into account by applying their own judgement as citizens / delegate or through other means such as public meetings etc.

Secondly, the LGA 2002 requires a greater level of public participation for decisions which are “significant”:

- Section 97 says that certain decisions can only be taken if they are explicitly provided for in long-term council community plan:

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.

Notably, the judgements about the nature and extent of compliance that apply to other decisions do not apply to section 97.

- Local authorities are required to have adopted a policy of determining significance, including the identification of strategic assets. Most of these have a set of quantitative thresholds, ie certain amount of spending, and some qualitative thresholds, ie the proposal affects a small number of people to a high degree or large number of people to a moderate degree. This policy acts as a filter for applying the obligations in section 97.

- If the proposal is not in the long-term council community plan, the local authority must amend the plan under section 84 to incorporate the proposal. Any amendment must be consulted on under the special consultative procedure. (The long-term council community plan is prepared and adopted under the special consultative procedure every three years.)

- The special consultative procedure is the most formalised means by which local authorities can take account of community views. Section 83 sets out a number of mandatory public participation requirements, including public notice of the proposal and a one month period for submissions.

The philosophy behind these requirements is to ensure that local authorities adopt a long-term strategic perspective for significant decisions mandated by public consultation – ensuring a local authority does not act on a “whim” when making a significant decision.

The short point is that the waterfront stadium option is not, as far as I’m aware, provided for in the City’s long-term council community plan.

You’ll find in the City’s long-term council community plan the City’s policy on significance. Clearly the stadium plan will qualify as a significant proposal. This will trigger the obligation to include the proposal in the long-term council community plan by the special consultative procedure.

The legal beagles may be thinking that that amendment can be made in due course, after the City has committed to the proposal. But that must be flawed. There can be no surety about the proposal until it’s in the long-term council community plan. And the City can’t treat the consultation as a mere formality to endorse a decision they’ve already committed to – this would breach the requirements to consult on the proposal with an open mind.

In my view, the only legal option is to expedite an amendment to the long-term council community plan. This would take at least 6 to 8 weeks (and that’s incredibly optimistic!).

2 comments:

Rich said...

Can they not "agree to agree", subject to legally required consultation / legislation? What the government is looking for is that a majority in council agree with the idea.

Then parliament passes enabling legislation that overrides the LGA, RMA, Securities Act, Auckland Harbour Act and anything else neccesary for the purposes of constructing the stadium. Which would just be an exercise of parliamentary sovereignty, wouldn't it?

Dean Knight said...

Rich:

Probably not.

The City cannot "commit" to a project without following the SCP.

It can indicate it supports the proposal subject to community views. But that would need to include the possibility that that decide not to proceed following community views. My understanding is that the govt requires a *firm* commitment...

d

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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