SCOTT & ORS V ACC & ANOR HC AK CIV 2006-404-7226

SCOTT & ORS V ACC & ANOR HC AK CIV 2006-404-7226 23 November 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-7226UNDER the Judicature Amendment Act 1972 or in the alternative Part 7 of the High Court Rules IN THE MATTER OF Part 6 of the Local Government Act 2002 BETWEEN VALERIE ELSPBETH SCOTT & OTHERS Plaintiffs AND AUCKLAND CITY COUNCIL First Defendant AND AUCKLAND REGIONAL COUNCIL Second Defendant Hearing: 23 November 2006 Appearances: R E Harrison QC and A Webb for the Plaintiffs G Hall and B J Moffat for the First Defendant B R Latimour and T D Bennett for the Second Defendant Judgment: 23 November 2006ORAL JUDGMENT OF PRIESTLEY JCounsel/Solicitors: R E Harrison QC., P O Box 1153, Auckland Alan Webb, P O Box 106215, Auckland R Wood, P O Box 6422, Auckland G Hall & B J Moffat, Buddle Findlay, P O Box 1433, Auckland B R Latimour & T D Bennett, Bell Gully, P O Box 4199, Auckland Copy to: D Collins QC, Solicitor General, Crown Law, P O Box 2858, WellingtonSubstantive Proceeding[1] Yesterday afternoon the plaintiffs filed a proceeding pursuant to the Judicature Amendment Act 1972. [2] That proceeding focuses primarily, so far as the plaintiffs are concerned, on forthcoming decisions to be made by the two defendants this evening and tomorrow in the general area of the siting and construction of a waterfront stadium which is intended, inter alia, to be the venue of the 2011 Rugby World Cup. [3] The plaintiffs are five in number. One, Mrs V E Scott, has filed an affidavit setting out various concerns which, without narrating them, have at their heart a perception that the entire process of consultation about the stadium, to which I shall shortly refer, has been rushed; that certain obligations imposed on the two defendants by the Local Government Act 2002 ("LGA") have not been observed; and that in particular the plaintiffs have not had the right of input or to take part in any meaningful way in a consultation process. [4] No objection is taken by the defendants, and properly so in my view, to the standing of the plaintiffs to seek this relief. In essence I see the proceeding as being a product of concerns in the wider Auckland community arising out of the stadium debate. [5] Counsel for the defendants understandably have had little time to prepare. It is common ground between counsel that a substantive hearing will be necessary. Whether that hearing will deal totally with the plaintiffs' substantive application, or will instead focus on interim relief, remains to be seen. [6] Arrangements have been made to allocate a two day hearing commencing 11 December 2006 before the Chief High Court Judge, Randerson J. I direct the Registry, in consultation with counsel and Randerson J, is to convene a telephone conference so that appropriate timetable orders and directions can be made. That conference could take place tomorrow or should certainly take place no later than Monday 27 November.[7] I also direct that copies of the proceedings, counsel's submissions, and supporting affidavits, and this judgment are to be served on the Attorney General, representing the Government, the Ports of Auckland Limited and Auckland Regional Holdings Limited who have a clear and undisputed interest in the strategic asset of Auckland's port which must clearly be affected by the waterfront stadium proposal; and on the Eden Park Trust Board. Service is to be effected by the plaintiffs. [8] So far as the Attorney General is concerned, on the evidence currently before me I consider that it is appropriate for the Attorney General to be joined as a party. I so direct, reserving leave for the Attorney General to seek a recission of that order if there is some principled reason why the Attorney General should not be a party in this proceeding. My reasons for ordering joinder are first that there is no direct evidence, other than an exhibited press statement from the Hon. Trevor Mallard, as to what the Government's policy and intentions are over the stadium; secondly what it was precisely that the Government sought from the two defendants; and thirdly, if it is the Government's intention to pass special legislation to expedite the building of the stadium, then many administrative law problems which might arise during the process under relevant legislation could well be subsumed by special legislation and the opportunity to present submissions at a Parliamentary Select Committee. [9] As to the other entities I have directed to be served, leave is reserved to them, if they so desire, to intervene. [10] I observe finally that, although the defendants have had to respond to this proceeding at very short notice, the chief executive of the first defendant, David William Rankin, has filed an affidavit setting out the first defendant's perceptions of the situation.Interim Relief[11] The substantive remedy currently sought by the plaintiffs is to attack the decisions which it has anticipated the defendants will make over the next 24 hours. The statement of claim lays heavy emphasis, understandably so, on the consultation processes contained in Part 6 of the LGA. I do not consider it is necessary for me torecite the plaintiffs' claims in their totality. The following summary provides the essential framework.• Both defendants are territorial authorities constituted under the LGA.• That New Zealand is to host the World Rugby Cup in 2011, it currently being intended that the semi finals and/or finals of that competition will be played in Auckland.• That for various reasons a stadium with a substantial seating capacity is necessary.• That the Government, in respect of which the Honourable Trevor Mallard has been the spokesperson, has proposed that a stadium be constructed on Auckland's waterfront and/or container wharves.• That the waterfront itself, and arguably such a stadium if it was to be created, is a strategic asset or has the potential of being a strategic asset for the purposes of s2 of the LGA.• That in response to various statements made by Mr Mallard both defendants intend to make a decision, or give some form of indication, or express a preference between the proposed waterfront stadium and the initially designated World Cup venue, Eden Park. (I have expressed a number of alternatives in the previous sentence quite deliberately to reflect the fact that the evidence currently before me is unclear as to precisely what it is the two defendants intend to address over the next 24 hours).• That for jurisdictional reasons, particularly having regard to the provisions of ss76-81, 93 and 97 of the LGA and also those provisions of the statute which require local authorities to consult with Maori, any decisions in this area made by the defendants would be objectionable for jurisdictional reasons, flawed, and reviewable.[12] In summarising very baldly the statement of claim this way I am not minimising or under-estimating the submissions which have been made to me today by Mr Harrison QC. Rather, given the limited issue I have to decide today, I see little point in extensively reviewing substantive issues which will be for future determination by this Court. [13] The issue before me today, however, is whether to grant interim relief pursuant to s8 of the Judicature Amendment Act. Section 8 relevantly provides:8 Interim orders(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes: (a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power: (b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates: (c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force. [14] Any application under the Judicature Amendment Act 2002 must, of course, bring itself inside the jurisdictional ambit of the s3 definition of "statutory power of decision" and also s4.4 Application for review(1) On an application which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application, by order grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.[15] The submissions of Mr Harrison in essence satisfy me that the statement of claim makes out an arguable case for judicial review and that the two defendants are exercising relevant statutory powers. I note that Mr Harrison further submits that in terms of s4(1) he would additionally argue that the defendants have failed to perform statutory duties. This arguable case relies on a combination of the very broad range of decisions (essentially unfettered) conferred on local authorities by s12(2) of the LGA and in particular (relevantly so far as Part 6 obligations are concerned) focuses on the decision making power set out in s76. [16] Counsel during the course of argument pointed out that so far as the first defendant is concerned it does not own the land or seabed on which proposed waterfront stadium might be built; nor does it own Eden Park; nor if the stadium is built is it proposed that the first defendant will own it. These arguments are of considerable relevance in the areas of obligations under the LGA attaching to local authorities so far as "strategic assets" are concerned and also "significant decisions". The position of the second defendant, because of its indirect interest in Auckland's port generally and its ability to appoint controlling directors, is different. [17] However, I do not regard these matters as being at all conclusive. It seems clear to me that, responding to central government indications and requests, both defendants have formed the view that they need to make some form of decision so far as the Government's stadium proposal is concerned. Whether the stance of the defendants would be to ignore central government's requests, respond to those requests, express a preference for one stadium site or the other, or give qualified indications, or whatever other multitude of permutations are available to the defendants, at the end of the day I consider that s76 catches whatever decisions or resolutions may be made by the two defendants over the next 24 hours. Even if, as Mr Hall suggests, no more is done than one or both defendants offering comment on the proposal as a local authority, the mere decision to offer such comment is clearly a decision. [18] The strength of the plaintiffs' claim, of course, is impossible for me to assess. With the exception of Mr Rankin's affidavit there is absolutely no evidence to assistme. I have no information about what the response or reaction of central government, one way or the other, may be to tomorrow's decisions. [19] I briefly comment, however, that it seems clear on the evidence thus far that both defendants have formed the view that some response or reaction by them to the Government's proposal is necessary within the time-line demanded by Mr Mallard. Mr Rankin put it this way:6. Auckland City became aware that central government required it to proved comments no later than 24 November 2006 through a meeting with the Hon. Trevor Mallard on the morning of 10 November 2006 followed by the publication of a press release issued by him on behalf of central government on the same day (the "press release"). A true copy of the press release is annexed to this affidavit and marked "A". 7. The press release contained the following quote from the Hon. Trevor Mallard: "However, the government does want to ensure that Auckland supports our view and buys into this proposal. In order to do this I will be asking for comment from the Auckland Regional Council and Auckland City Council on the two principal options – the Waterfront and Eden Park – by 24 November or earlier " 8. As a result of this press release and meetings with the Hon. Trevor Mallard Auckland City became aware that it needed to act quickly to prepare its comments in order to meet the short timeframe set down by central government. This included providing an opportunity for the public to express their views.[20] Mr Harrison, with considerable force, submits that certainly so far as the first defendant is concerned, it has gone much further down the track than the mere expression of a preference or offering comment on the Government's proposals conveyed by Mr Mallard. He has referred to various statements contained in the 19 November 2006 edition of "City Scene" which include the comments that the first defendant voted in October to support the waterfront stadium with Eden Park as a back up option, along with Mt Smart; and that in the same month the first defendant made a submission "to the Government supporting the waterfront site"; and that further, on 10 November, (a reference to Mr Mallard's press statement), the Government announced its strong preference for a waterfront option and considered it to be viable.[21] I also note with considerable interest that attached as exhibit "B" to Mr Rankin's affidavit is a Council paper, which I take it from Mr Hall's submissions will be on the agenda for tonight's meeting, headed up "Choosing a Stadium Site Location". This paper is extensive but clearly recommends that as between Eden Park and the down-town waterfront, "the location which best (sic) delivers the balance of social economic and cultural benefits to Auckland and New Zealand is the down town waterfront". [22] The exact status of these recommendations is unclear to me and how the first defendant deals with such recommendations prepared by its officers, and exactly what decision if any it makes and why, are entirely matters for it. [23] The second defendant is to consider the matter tomorrow. There is no evidence before me which assists me either way on interim issues. [24] The major concern of the plaintiffs, as I have stated, is their inability to have personal input in any Part 6 consultative process, added to which are the jurisdictional concerns advanced by their counsel which are that Part 6 of the LGA has effectively been ignored. [25] The reason why the two defendants, as responsible and powerful territorial authorities, are in this position would appear to be, on the evidence of Mr Rankin, solely because of the "short time frame" imposed by central government. [26] Mr Harrison has also placed evidence before the Court relating to website information, the consultative process generally, and other matters. Mr Hall for his part tells me that there has indeed been an extensive consultative process. The stadium site, unsurprisingly perhaps, has excited a good deal of public interest and response. He tells me that somewhere in excess of 10,200 comments or submissions have been received by telephone, or in writing, or electronically from various interested Auckland City citizens. To what extent that consultative process influences the first defendant is entirely a matter for it. It is clear from the legislation in any event that, so far as Part 6 procedures are concerned, although the consultative process is essential, it is by no means determinative of local authorities' decisions.[27] There are two difficulties which I perceive with the plaintiff's application for s8 interim relief. Section 8(1) relevantly provides:8 Interim orders(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes: It is thus incumbent on the plaintiffs in this case to satisfy me that s8 orders are necessary for the preservation of their positions. [28] The second difficulty is probably one of procedure rather than substance, although it has been seized on with understandable enthusiasm by Mr Hall. That is the way in which para [11] of the plaintiffs' statement of claim is formulated.11. The Government through its Cabinet Minister the said Trevor Mallard has demanded of each of the ACC and the ARC that it make a decision whether or not to proceed with the construction of the Waterfront Stadium to the exclusion of all other possible stadium options (including an upgraded Eden Park Rugby Stadium), no later than Friday 24 November 2006.It is abundantly clear that neither of the defendants are currently empowered to make "a decision whether or not to proceed with the construction" of a stadium to the exclusion of other possible stadium options. However, I do not see that pleading, although the point made by Mr Hall is validly made and a powerful point, as being an insuperable impediment to this Court granting s8 relief if it considered it was appropriate to do so. The substance of the plaintiffs' arguments have already been placed before me. [29] I am of course assuming for the purposes of this exercise that the plaintiffs have an arguable case. I consider that they have in any event. Nonetheless the problems of para [11] of the statement of claim are significant and demonstrate really the difficulties for this Court trying to decide exactly what it is that the two defendants are going to resolve or decide for s76 purposes over the next 24 hours.[30] This is not the appropriate time for me to embark on an analysis of s8 jurisprudence. Suffice to say that I prefer the very broad discretion which the Court of Appeal articulated in Carlton & United Breweries Ltd v Minister of Customs[1986] 1 NZLR 423. A number of factors have to be determined against the circumstances shown to exist. The most important of these, for jurisdictional reasons, is clearly the necessity to preserve an applicant's position. There is nonetheless a discretion which must be exercised in the context of the scheme and purpose of the relevant legislation, (here the LGA), under which the impugned decision was made, and also the apparent strengths and weaknesses of the applicant's claim. [31] Mr Latimour stressed to me the repercussions of granting interim relief under s8 and in particular alluded to the possibility that if the defendants were restrained from making a decision, the down-stream consequences to the Auckland region if were not the World Cup venue, might be quite severe. I give that some weight, but only slight. This Court's function is to determine competing claims between the parties according to law, and although Mr Latimour was not suggesting to the contrary, speculation on exactly how committed central government is to the water- front stadium, what its reaction may be at a political level to divided opinion, and indeed what its reaction would be if the two defendants did not comply with the ministerial time-line is just speculation. [32] Mr Harrison's concern is that the decisions, whatever they may be, which the central government clearly expects from the defendants over the next 24 hours, are critical. At a political level he considers that the decisions are really at the point of no return; that once, by their decisions, the defendants have empowered central government to proceed along the path of constructing a waterfront stadium the plaintiffs' rights to consultation and input will be rendered nugatory. He also expresses a concern that if s8 orders are not made today, so far as the first defendant in any event is concerned, it will have determined the issue and any subsequent order of this court in the substantive proceedings quashing the decisions of the first defendant and requiring it to reconsider the matter, are unlikely to produce a different result.[33] In reply to that submission Mr Hall submitted that the defendants are subject to the law and that if it were to be established that they have erred they will of course reconsider matters in a conscientious and principled way.Decision[34] The effect of granting interim relief under s8 would be to prohibit the two defendants from making any decision or having any input on the Government's proposed stadium at all. [35] I accept that the procedures which Part 6 requires have been truncated and in some cases arguably ignored. [36] But the difficulty I face is that although I am prepared to accept that decisions of the defendants, which for ss12 and 76 LGA purposes are decisions made under statutory power, I have absolutely no idea what those decisions might be. Exactly how the defendants react to the central government's requests, or arguably pressure, is a matter for them. Both are responsible territorial authorities who will not be oblivious to their statutory obligations and to the political cockpit in which they are currently operating. The effect of granting interim relief would quite simply be to prevent any further discussion or input by the defendants at all. But if decisions are made, it seems to me that the plaintiffs' rights to contest those decisions, if there be jurisdictional error, is unimpeded. [37] So too this Court would have the benefit down-stream of further evidence. Mr Harrison may be right that the next 24 hours may represent some form of political Rubicon, but I do not know, and with respect, nor does he. [38] To make s8 orders restraining the defendants from any further input would in my view be wrong in principle. Importantly I do not consider it is necessary to do so to preserve the plaintiffs' position, given the fact that they still have available to them under the general ambit of this proceeding the right to attack specific decisions which presumably will be made over the next 24 hours.[39] Taking a step back and looking in very broad terms at the s8(1) discretion and the guidance helpfully provided by the Court of Appeal in Carlton & United Breweries Ltd, the circumstances which the evidence currently shows to exist is in some critical areas obscure. And as for an "impugned decision", the Court has no knowledge of what those decisions by the defendants might be. [40] I have a wide discretion. I see some strength in the plaintiffs' case. But in the exercise of my discretion I consider that to make s8 orders at this stage would be wrong. I therefore decline to do so and accordingly the plaintiffs' application for s8 interim relief is dismissed. [41] That said, I am sure that the defendants and their advisors will be well aware of the high degree of public interest and concern which the Auckland region has over the site of the stadium. I would be surprised if the time-lines and the reasons for them to which Mr Rankin has deposed have not caused the two defendants and their advisors legitimate concern.Costs[42] Although there is a clear entitlement of the defendants for costs on this interlocutory application, because of the public importance of the substantive issues and the fact that the substantive issues are unresolved, I intend, without opposition from counsel, to reserve costs............................................. Priestley J