THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITY COUNCIL [2020] NZHC 850

THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITYCOUNCIL [2020] NZHC 850 [30 April 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2019-441-26[2020] NZHC 850BETWEEN THE FRIENDS OF ONEKAWA AQUATICCENTRE SOCIETY INCORPORATEDApplicantAND NAPIER CITY COUNCILRespondentHearing: 30 September and 1-2 October 2019Appearances: M J E Williams for ApplicantP M S McNamara and O L Rego for RespondentJudgment: 30 April 2020JUDGMENT OF CLARK JTable of ContentsIntroduction [1]Background facts [2]Council engages the community [9]Council scopes a new 50m build option [11]The Council changes direction [17]Long Term Plan Consultation Document [25]LTP process [26]Community feedback on proposals in consultation document [33]Council adopts the LTP [36]Review of significance and engagement policy [38]Overview of the application for judicial review [40]Applicant's position [40]Respondent's position [44]Local Government Act 2002 [46]First ground of review: breach of statutory consultation obligations [59]Society's case [59]Council's position [62]A preliminary matter [64]Discussion [75]Decision [86]Second ground of review: misleading consultation document [97]Discussion [100]Third ground of review: legitimate expectation [117]Fifth ground of review: inadequate information [123]Society's case [123]Council's position [126]Discussion [127]Sixth ground of review: failure to identify all reasonablypracticable options [155]Society's case [155]Council's position [157]Discussion [159]Seventh ground of review: predetermination/fettering of discretion [167]Society's case [167]Council's position [169]Discussion [171]Eighth ground: review of tender decision [190]Society's case [190]Council's position [194]Discussion [195]Ninth ground of review: wrongful reliance on significance and engagementpolicy [203]Society's case [203]Council's position [205]Discussion [206]Result [225]GlossaryIntroduction[1] The applicant challenges numerous aspects of the process by which the NapierCity Council reached a decision to close the Napier Aquatic Centre at Onekawa(Onekawa facility) and build a new pool complex on Prebensen Drive.1Background facts[2] Owned and operated by the Napier City Council, the Onekawa facility is themain community pool in Napier. It serves what the applicant describes as a "lowersocioeconomic opportunity" reliant on walking access to the Onekawa facility to learnto swim.[3] The Napier communities had become dissatisfied with what they perceived asthe inadequacy of the aquatic facilities available to them. In mid-2014, the Councilengaged consultants for the purpose of producing a Napier aquatics strategy. Thestrategy was to set the direction for the provision of aquatic space to meet Napier City'sneeds for the next 30 years. The strategy was developed following engagement withnational and regional stakeholders (sports and lifesaving clubs, schools and othereducational institutions, the Hawkes Bay District Health Board and Regional Council,and many more).[4] The final strategy, which was adopted by the Council in January 2015,identified slow population growth in Napier and the wider Hawkes Bay meaningsignificant investment in aquatic facilities needed to focus on changing, rather thanincreased, demand for facilities. An increasingly aging population was an obviouscontributor to changed demand for aquatic space and changing trends in aquatic sport.The strategy also identified significant limitations with the Onekawa facility:(a) The 25m lane pools (known as the Ivan Wilson complex) within theOnekawa facility were not compliant with the requirements for nationalaquatic sports competition events.1 A glossary of terms is provided in an attachment to this judgment.(b) The shallow depth of the pools within the Onekawa facility limited theprovision of aquatic sports such as aqua jogging, water polo and diving.(c) The children's pool was restricted for play purposes because it was theonly pool of suitable size and depth able to be used as a teaching poolfor most primary age children.[5] In August 2016, the Council engaged Global Leisure Group (GLG) to develop"a business case for investment into replacing and creating additional pool facilities atthe Napier Aquatic Centre to meet current and future community needs".[6] In June 2017 GLG completed its report: Napier Aquatics Centre BusinessCase: Option for Expansion (Business Case). GLG had surveyed all aquatic clubsand met with representatives of a number of the clubs. The business case reported onfeedback from Sport Hawkes Bay, the Onekawa facility management and programmestaff, and the Hawkes Bay DHB. Other community feedback was sought andsummarised in the business case.[7] GLG undertook an analysis of four options. While GLG assessed all optionsas meeting the identified needs it recommended public consultation on only two of theoptions:(a) the extension and expansion of the existing Ivan Wilson Pool complex.This option (GLG option 2) involved retaining the existing Ivan Wilson6 lane, 25m x 12m pool, learner pool, hydro slides and spa pools andbuilding new facilities including a new 25m x 25m pool and a new learnto swim pool.(b) replacing all the current facilities on site and developing a new poolcomplex incorporating a new 10 lane 25m x 25m pool, a newprogramme pool and a new learn to swim pool (GLG option 3).[8] One of the four options that GLG assessed was a new build complex to replaceall Onekawa facilities. The new build would include a 50m pool. This is referred tothroughout as the "new build option", or the "50m new build option". Because itwould not provide the same flexibility to meet current and future community demandcompared to option (b) above, GLG discounted it and recommended againstconsulting on that option.Council engages the community[9] At its meeting on 16 August 2017 the Council approved the Business Caseoptions for expansion and resolved to progress community engagement andconsultation on the following three options, all of which involved some kind ofextension or re-development of the existing Onekawa facility:(a) Option 1: the extension and expansion of the existing Ivan Wilsoncomplex (build cost $19.5m);2(b) Option 2: the replacement of current facilities which would include anew 25m x 25m pool (build cost $37m);3(c) Option 3: a new complex comprising three new pools, a café and waterplay area. One of the new pools would be 50m x 21m (build cost$38m).4[10] Notwithstanding GLG had recommended against consulting on the option of anew 50m pool, it was included in the options on which the community's views weresought.Council scopes a new 50m build option[11] The overwhelming community preference (84 per cent of 1,695 responses) wasfor the 50m new build option. In November 2017 the Council resolved to support thedevelopment of designs, schedule and costings for this option to be considered duringthe 2018–2028 Long Term Plan (LTP) process.2 This option had been GLG's option 2.3 This option had been GLG's option 3.4 This option had been GLG's option 4.[12] Meanwhile, in September 2017 and in anticipation of consultation on theproject during the LTP process, the Council's Chief Executive Wayne Jack, askedDr Plested, the Council's Manager Design and Projects, to engage specialist assistancewith the project management of the aquatic centre project.[13] A closed contest request for proposal (RFP) was released seeking a consultantto develop a breakdown of the tasks needed to accomplish the planning, consultation,design, contracting and construction of the then proposed aquatic centre at Onekawabased on the "50m new build" scenario presented by the Council as Option 3 duringits community consultation phase. The scope of services sought in the RFP included:(a) development of a list and schedule of tasks required to move theCouncil from its concept development stage to project completion andhandover;(b) provision of estimated costs for each task along with rationales; and(c) provision of a list of risks to successful project completion, withcorresponding tasks and mitigation actions.[14] The RFP recorded specific risks identified by the Council includinggeotechnical issues relating to the fact the Onekawa site was a former landfill. Thiswas a high-risk matter because if the foundations could not be engineered to accountfor the ground conditions the project would "not pass go". A further high-risk matterwas that, being landfill and therefore a hazardous site, there were requirements underthe Resource Management Act 1991 to undertake testing, reporting and remediation(or management) as part of the development and earthworks. Until an investigationwas undertaken of the nature of contamination and a solution determined, the cost ofdevelopment would not be known. The RFP noted that a report prepared by PattleDelamore Partners Ltd (PDP) was available. That report, prepared in 2009, includedan illustration of the location of the landfill activities. In all, the RFP identified some11 risks and "other issues".[15] Ultimately, the services were procured from The Building Intelligence Group(TBIG). TBIG was instructed to locate the new 50m pool at the Onekawa site and toprice it as a greenfield construction5 but due to the location of landfill debris agreenfield approach was not possible and pricing for handling landfill debris had to beincluded in the cost estimate.[16] The information sought from TBIG was received on 8 December 2017. TBIGsubmitted a cost loaded schedule providing a timeframe for project phases and theestimated cost of the project. The data contained in the three pages of schedules wasin the form of charts, commonly termed Gnatt charts. TBIG also submitted a two-page register of risks.The Council changes direction[17] The TBIG cost estimate and risk register resulted in a complete change ofdirection by the Council. TBIG estimated a project cost of approximately $49.1mincluding an allowance of $3.5m for contingencies and $3.5m for cost escalationthrough to 2021. This was $10m to $11m greater than the cost of the 50m pool optionassessed during the community engagement and consultation phase.[18] TBIG identified 44 risks potentially affecting the success of the project as itprogressed through the planning, design and construction phases. Where the risks hada cost impact on the project, the costs were identified. For example, the additionalcosts associated with disposing of contaminated landfill debris in order to form a soundfoundation for the pool was estimated at $800,000. TBIG's report was presented to,and discussed with, senior Council leadership in the week 11 to 15 December 2017.[19] Based on TBIG's assessment of costs and risk Dr Plested recommended toCouncil that if another site without the risks and associated costs of managing themwas available, that should be investigated before making a decision to proceed withthe 50m new build at Onekawa. Dr Plested's analysis and concerns are covered ingreater detail under the fifth ground of review.5 That is, no demolition required before construction commenced.[20] Council officers then progressed a desktop review of alternative sites for theaquatic centre development and Prebensen Drive was selected as the "preferred site".[21] The TBIG schedules and risk register themselves were not provided toCouncillors prior to making the impugned decision but key information from themand from a "Masterplan Budget" prepared by Rider Levett Bucknall (RLB) was givento Councillors before they decided to adopt the LTP. For example, at a 2018–2028LTP Council seminar on 31 January 2018, a power point presentation included thefollowing information:Aquatics Expansion• 50 metre pool is not affordable• TBIG/RLB assessment of 50m option = $49m (incl $3m contingency & costescalations)• Issues with current site at Onekawa• Currently validating alternative greenfields site• Preferred option is QE II design 25x25 - bells and whistles at a lower cost• Options to include in Consultation Document:Option 1. $49m basic design 50m poolOption 2. $42m (QE II design/build) 25m x 25m poolOption 3. $19m expansion of current facility[22] Councillors were given a further presentation of the same information on14 February 2018.[23] At a seminar on 13 March 2018, a draft consultation document was presentedto Councillors for their review and discussion. The draft identified three options foraquatic facilities in Napier: a new pool complex at Prebensen Drive; a more expensivecomplex at Prebensen Drive that included a 50m pool; and an extension of the existingfacilities at Onekawa.[24] The agenda for an Extraordinary Meeting of the Council on 16 March 2018contained the following:That council receive the pre consultation feedback on the Aquatic options andconsult fully as part of the Long Term Plan, recognising that costs were higherthan anticipated on a more detailed review of the 50m pool option. A furtherreview of site options to be explored as part of this exercise.Long Term Plan Consultation Document[25] On 28 March 2018, Mr Jack initiated an email "discussion" about the 50m pooloption. The Council was reaching the stage where it had to finalise the content of the2018 consultation document for Audit New Zealand signoff. As there continued to bediscussion amongst some Councillors about the 50m new build option,notwithstanding the support shown at the seminars on 31 January and 14 February2018 to bring forward option 2 (development of a 25 x 25 metre pool at PrebensenDrive) into the LTP consultation process, Mr Jack sought the views of Councillors onthe reality of including the new build option in the consultation document.LTP process[26] At an Extraordinary Meeting on 10 April 2018, the Council resolved:To approve the Consultation Document for Napier City Council 2018–28Long Term Plan for public consultation. (Consultation document)[27] The Council also adopted specific supporting information for the consultationdocument.[28] The consultation document summarises the reasons why the Council decidedto take a "fresh look" at the location of the aquatic centre. The consultation documentstates:A 50-metre pool for training and competitions was supported by swimmingclubs in particular. We looked into this option further, but with continualincreases in construction costs nationwide and the increased operating costs,the cost of the original concept grew. The revised estimate has increased by$12 million to $51.7 million to construct and will add over $100 a year to ratesper household.Since last year, there is also a proposed 50-metre swimming pool facility atthe Hastings Regional Sports Park that aims to cater to the demand for swimtraining and competition sports. A 50-metre pool in Napier would duplicatethe development in Hastings.Historical issues with the Onekawa site and its previous use as a refuse facilitymust also be considered.Bearing all of this in mind, we have taken a fresh look at where the AquaticCentre should be located. There is a centrally located, Council-owned site onthe Prebensen and Tamatea Drive corner that could accommodate a newdevelopment, while still allowing for increased water spaces in the future.This site would provide convenient access for more people in the city andacross Hawke's Bay. Should this option be supported, we will need to assessthe site further.Our proposed option, located at the Prebensen site, will focus on recreation,learning to swim and fun leisure activities for our community. The waterspace proposed meets the needs of a high proportion of users while alsomeeting the requirements of competitive swimmers and would complementthe proposed 50-metre pool in Hastings. The design would be based on theQE II complex currently being built in Christchurch in order to reduceconstruction risks and design costs.Should the development of the new site go ahead, we would keep the currentOnekawa pool running until the new complex was ready. Prior to the pool'seventual closure, we would look into the options for the future of OnekawaPark.The current facility costs $62 to run per ratepayer per year.[29] Following this explanation, the two options were summarised in a table headed"Options at a glance".Options at a glance:OptionTotalwaterspaceCost tobuildTotalcost tooperateIncreasesto ratesper year25m x 25mPools andPlayPoolextension1274m2Excludeszerodepth1127m2$41.3 m$20.2 m$3.3 m$2.8 m$67$51[30] The consultation document expanded on the two options in the table in thefollowing way.THE PROPOSED OPTION:25m x 25m Pools and Play (new location) - $41.3 million capital ($34 millionloans, $7.3 million reserves) /$3.3 million total operation per year (rates anduser pays) – 2.75% total rate increase, $67 average rates increase perhouseholdThis new pool complex would be at the Prebensen location and would includethree new pools (a 25m x 25m pool, a 25m x 12m learners' pool and a 20m x8m programme pool), two spa pools, a gymnasium, a café and a water playarea featuring an accessible pool, bomb pool, hydroslide, splash pad and watertoys, meeting the needs of a high proportion of users. This complex wouldcater for the high interest in leisure play as well as providing more lane spaceand would be modelled on the QEII complex currently being constructed inChristchurch.There is the opportunity with this option to extend the 25m pool to a 50m poolif there is demand in the future.Lifespan: 50 years.OTHER OPTION:Existing Pool Extension - $20.2 million capital ($13.1 million loans,$7.1 million reserves) / $2.8 million total operating per year (rates and userpays) – 2.55% total rate increase, $51 average rates increase per householdThis is an extension to the existing facilities in Onekawa with a new 25m x25m pool (replacing the existing 25m pool), a new 12.5m x 8m learners' pool,and a gymnasium. The water slides, spa pools and splash pad would remain.Access to the facility would be limited during construction of the new pools.Lifespan: 15 years (this is when current facilities will needrefurbishment).[31] A further presentation was given to Councillors on 24 April 2018. The43-page document entitled "Napier Aquatic Centre Re-development Proposal 24 April2018":(a) reviewed 'the journey', from the 2015 Napier Aquatic Strategy todevelopment of the LTP options;6(b) restated the Council's objectives (which included meeting Napier'saquatic needs and minimising ratepayer impact); and(c) set out in detail the rationale for the proposed Prebensen Drive option,and why it was the preferred option.[32] A "NAC Development Q & A Session" with Councillors on 22 May 2018covered similar material.6 Namely, the "proposed" new 25m x 25m pool on Prebensen Drive and the "other" being expansionof existing facilities at Onekawa which would include a new 25m x 25m pool.Community feedback on proposals in consultation document[33] There were 810 responses to the aquatic centre proposals. Opinion was evenlydivided between the two options. Thirty nine percent (314 submissions) preferred theproposed new location (Prebensen Drive) pools. Thirty eight percent(306 submissions) preferred an extension to the Onekawa facility and 23 per cent(190 submitters) selected no preference.[34] While the majority of submitters favoured a 25m pool, support for a 50m poolwas also evident with the majority wanting it to be located at Onekawa. Of course, a50m pool — at any location — was not included as an option in the consultationdocument.[35] Councillor Wise raised in an email on 29 May 2018 a query in relation to aprocess referred to as "double debate". The advice Councillors were given in responseis the subject of the seventh ground of review and is discussed further under that head.Council adopts the LTP[36] On 29 June 2018 the Council decided to adopt the LTP. It is the Council'sdecision of 29 June 2018 that the Society challenges in its application for judicialreview, and which it seeks to have declared invalid. The Council resolved:(a) That Council adopt the long-term plan 2018-2028 in accordance withthe Local Government Act 2002, subject to minor changes from AuditNew Zealand.(b) That the submitters be advised of the Council's responses in relationto their submission.[The impugned decision.][37] Ms Wise deposed to having no opportunity to properly discuss and debate theaquatic centre re-development proposal because of concerns about the implications ofdeferring the matter. Ms Wise's account is contradicted by the respondent.Review of significance and engagement policy[38] Alongside the LTP process, the Council reviewed its significance andengagement policy. The significance and engagement policy is prepared pursuant tos 76AA of the LGA which requires Councils to adopt such a policy. The Council's2014 policy stated it would be reviewed every three years. The Council commencedits review in October 2017. In December 2017 the Council amended its 2014 policy.[39] The applicant protests the Council's amendment of its significance andengagement policy without consultation. It will therefore be necessary to return to thepolicy under the relevant ground of review.Overview of the application for judicial reviewApplicant's position[40] It bears repeating that the decision at the heart of the applicant's challenge isthe Council's resolution on 29 June 2018 to adopt the 2018–2028 LTP.7[41] The applicant says the impugned decision was made in breach of the Council'sstatutory obligations in relation to consultation and engagement with the ultimate usersof the aquatic centre namely, the ratepayers and communities who will pay for and usethe facility.[42] The statement of claim pleads nine grounds of review although Mr Williamssubmitted the essential argument is that a prior engagement step was required beforethe Council could legitimately include the Prebensen Drive option in the LTP andexclude the widely supported proposal to build a new 50m pool at Onekawa.[43] The applicant seeks:(a) a declaration that the impugned decision is invalid;(b) orders setting aside the impugned decision and all subsequent ancillary7 The impugned decision is set out above at [36].decisions including the Council's approval in April 2019 of a scope oftender; and(c) an order that the Council reconsider the impugned decision in themanner proposed under a notice of motion addressed by the Council atan Extraordinary Meeting on 20 December 2018.8Respondent's position[44] The Council acknowledges it did not formally consult with the communitybefore deciding not to include the option of a 50m pool at Onekawa in the 2018–2028LTP consultation document, but the further information that had become available toit meant the 50m new build option at Onekawa was no longer a reasonably practicableand financially prudent possibility for the Council to pursue. That was especially soin light of a proposal by the Hawkes Bay Community Health and Sports Centre Trustto develop a high-performance sports facility, including a 50m swimming pool.[45] The Council says it complied with the statutory obligations imposed by theLocal Government Act 2002 (LGA). In particular it encouraged those interested inthe re-development of the aquatic centre to present their views to the Council and itgave the public and stakeholders reasonable access to relevant information.Local Government Act 2002[46] In light of the extensive breaches of obligation pleaded by the applicant it isnecessary to set out the statutory framework in some detail. This part identifiesprovisions having particular application to the proceeding and summarises thestatutory obligations that attended the Council's decision on 29 June 2019 to adopt the2018–2028 LTP.[47] The purpose of the LGA is set out in s 3:8 The Extraordinary Meeting held on 20 December 2018 post-dated the impugned decision and theprocesses leading up to it. Therefore, it is not necessary to elaborate on the meeting. For context,however, I record that the statement of claim pleads that six Councillors requested an extraordinaryCouncil meeting to address a notice of motion that, essentially, would put a reassessed aquaticoption back out for further community consultation. The Council rejected the notice of motion bya majority of one.3 PurposeThe purpose of this Act is to provide for democratic and effective localgovernment that recognises the diversity of New Zealand communities; and,to that end, this Act–(a) states the purpose of local government;(b) provides a framework and powers for local authorities todecide which activities they undertake and the manner inwhich they will undertake them; and(c) promotes the accountability of local authorities to theircommunities; and(d) provides for local authorities to play a broad role in meetingthe current and future needs of their communities for good-quality local infrastructure, local public services, andperformance of regulatory function.[48] The purpose of local government is set out in s 10:10 Purpose of local government(1) The purpose of local government is –(a) to enable democratic local decision-making and action by, andon behalf of, communities; and(b) to promote the social, economic, environmental, and culturalwellbeing of communities, in the present and for the future.[49] By s 11 the role of a local authority is to:(a) give effect, in relation to its district or region, to the purposeof local government stated in section 10; and(b) perform the duties, and exercise the rights, conferred on it byor under this Act and any other enactment.[50] Section 12 confers on a local authority full capacity to carry on or undertakeany activity or business for the purpose of performing its role.[51] While the LGA gives to local authorities greater flexibility and discretion intheir activities than the predecessor 1974 legislation, that enhanced flexibility anddiscretion is balanced by requirements to ensure openness in their decision-makingprocesses. The Court of Appeal observed in Whakatane District Council v Bay ofPlenty Regional Council that the wide powers conferred on local authorities "aresubject to elaborate conditions".9 It must be noted, however, that the Court of Appeal'sobservation was made less in the round than in the context of the highly prescriptives 78(2) with its four-stage process for obtaining community views in relation todecision-making. Section 78(2) was repealed by s 9 of the Local Government Act2002 Amendment Act (2010). The relevance of its repeal is discussed below at [89].[52] Nevertheless, and as the Court of Appeal observed in Whakatane DistrictCouncil, the broad capacity given to local authorities is limited by other provisionswhich require close analysis.10(a) The general power of competence in s 12(2) is constrained by s 12(3)which provides: "Subsection (2) is subject to this Act, any otherenactment, and the general law".(b) When performing its role a local authority is required by s 14 to act inaccordance with the principles set out in s 14(1)(a)–(h):(a) a local authority should—(i) conduct its business in an open, transparent, anddemocratically accountable manner; and(ii) give effect to its identified priorities and desiredoutcomes in and efficient and effective manner:(b) a local authority should make itself aware of, and shouldhave regard to, the views of all of its communities; and(c) when making a decision, a local authority should takeaccount of—(i) the diversity of the community, and thecommunity's interests, within its district or region;and(ii) the interests of future as well as currentcommunities; and(iii) the likely impact of any decision on each aspect ofwell-being referred to in section 10:9 Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR826 (CA) at [20].10 At [5].(d) a local authority should provide opportunities for Māori tocontribute to its decision-making processes:(e) a local authority should actively seek to collaborate and co-operate with other local authorities and bodies to improve theeffectiveness and efficiency with which it achieves itsidentified priorities and desired outcomes; and(f) a local authority should undertake any commercialtransactions in accordance with sound business practices; and(fa) a local authority should periodically—(i) assess the expected returns to the authority frominvesting in, or undertaking, a commercial activity;and(ii) satisfy itself that the expected returns are likely tooutweigh the risks inherent in the investment oractivity; and(g) a local authority should ensure prudent stewardship and theefficient and effective use of its resources in the interests ofits district or region, including by planning effectively for thefuture management of its assets; and(h) in taking a sustainable development approach, a localauthority should take into account—(i) the social, economic, and cultural well-being ofpeople and communities; and(ii) the need to maintain and enhance the quality of theenvironment; and(iii) the reasonably foreseeable needs of futuregenerations.(c) The LGA emphasises community consultation. Together, pt 6 andsch 10 provide a framework for consultation, planning,decision-making and reporting. The focus is to make local authoritiesaccountable to their communities through open decision-makingprocesses.11[53] Part 6 (relevantly) sets out the obligations of local authorities in relation tomaking decisions and consulting interested and affected persons. Local authoritiesmust have, at all times, a long-term plan that (amongst other features) provides a long-11 As stated in the General Policy Statement of the Local Government Bill 2001, Explanatory Note.term focus for decisions and activities, and a basis for the local authority'saccountability to the community.12 Part 6 prescribes the processes and general contentof the LTP and sch 10 contains a more detailed prescription.[54] Section 76AA was inserted in 2014.13 Section 76AA replaced s 90. Wheres 90 required a local authority to adopt a policy setting out its general approach todetermining the significance of proposals and decisions in relation to issues, assets andother matters, s 76AA contains—(a) a detailed statement of the purpose of a "significance and engagementpolicy";(b) greater prescription around the content of an SEP; and(c) procedural requirements relating to a local authority's adoption oramendment of an SEP.[55] Section 76AA provides:76AA Significance and engagement policy(1) Every local authority must adopt a policy setting out—(a) that local authority's general approach to determining thesignificance of proposals and decisions in relation to issues,assets, and other matters; and(b) any criteria or procedures that are to be used by the localauthority in assessing the extent to which issues, proposals,assets, decisions, or activities are significant or may havesignificant consequences; and(c) how the local authority will respond to communitypreferences about engagement on decisions relating tospecific issues, assets, or other matters, including the form ofconsultation that may be desirable; and(d) how the local authority will engage with communities onother matters.(2) The purpose of the policy is—12 Local Government Act 2002, s 93(6)(d) and (e).13 By s 20 of the Local Government Act 2002 Amendment Act 2014.(a) to enable the local authority and its communities to identifythe degree of significance attached to particular issues,proposals, assets, decisions, and activities; and(b) to provide clarity about how and when communities canexpect to be engaged in decisions about different issues,assets, or other matters; and(c) to inform the local authority from the beginning of a decision-making process about—(i) the extent of any public engagement that is expectedbefore a particular decision is made; and(ii) the form or type of engagement required.(3) The policy adopted under subsection (1) must list the assetsconsidered by the local authority to be strategic assets.(4) A policy adopted under subsection (1) may be amended from time totime.(5) When adopting or amending a policy under this section, the localauthority must consult in accordance with section 82 unless itconsiders on reasonable grounds that it has sufficient informationabout community interests and preferences to enable the purpose ofthe policy to be achieved.(6) To avoid doubt, section 80 applies when a local authority deviatesfrom this policy.[56] Section 76 provides:76 Decision-making(1) Every decision made by a local authority must be made in accordancewith such of the provisions of sections 77, 78, 80, 81, and 82 as areapplicable.(2) Subsection (1) is subject, in relation to compliance with sections 77and 78, to the judgments made by the local authority under section 79.(3) A local authority—(a) must ensure that, subject to subsection (2), its decision-making processes promote compliance with subsection (1);and(b) in the case of a significant decision, must ensure, before thedecision is made, that subsection (1) has been appropriatelyobserved.(4) For the avoidance of doubt, it is declared that, subject to subsection(2), subsection (1) applies to every decision made by or on behalf ofa local authority, including a decision not to take any action.(5) Where a local authority is authorised or required to make a decisionin the exercise of any power, authority, or jurisdiction given to it bythis Act or any other enactment or by any bylaws, the provisions ofsubsections (1) to (4) and the provisions applied by those subsections,unless inconsistent with specific requirements of the Act, enactment,or bylaws under which the decision is to be made, apply in relation tothe making of the decision.(6) This section and the sections applied by this section do not limit anyduty or obligation imposed on a local authority by any otherenactment.[57] Section 77 provides:77 Requirements in relation to decisions(1) A local authority must, in the course of the decision-makingprocess,—(a) seek to identify all reasonably practicable options for theachievement of the objective of a decision; and(b) assess the options in terms of their advantages anddisadvantages; and(c) if any of the options identified under paragraph (a) involves asignificant decision in relation to land or a body of water, takeinto account the relationship of Māori and their culture andtraditions with their ancestral land, water, sites, waahi tapu,valued flora and fauna, and other taonga.(2) This section is subject to section 79.[58] Section 78 provides:78 Community views in relation to decisions(1) A local authority must, in the course of its decision-making process inrelation to a matter, give consideration to the views and preferencesof persons likely to be affected by, or to have an interest in, the matter.First ground of review: breach of statutory consultation obligationsSociety's case[59] The Society pleads that in making its decision to adopt the 2018-2028 LTP theCouncil failed to comply with the mandatory statutory obligations of the LGAincluding through failure to appropriately observe the requirements of ss 77, 78, 80,81 and 82, and having regard to the significance of the decision as determined underthe Council's significance and engagement policy.14[60] The Society pleads that in light of the significance of the decision the Councilhad a duty:15(a) to undertake "general informal and targeted consultation" with thewider community and specific stakeholders prior to release of theconsultation document; and(b) not to confine disclosure of the Prebensen Drive option to theconsultation document.[61] The Society's claim that a pre-engagement step was required is underpinnedby the following contentions:(a) The Council failed to encourage those affected by its decision to presentto the Council "in the collaborative manner" envisaged by the Council'ssignificance and engagement policy, their views on the "proposedoption" in the consultation document.(b) There was a systematic failure to provide interested and affectedcommunities with access to clear and relevant information at criticalstages of the process to enable their effective participation and to enablethe Council to give proper consideration to their views and preferencesas required by s 78(1).14 Second amended statement of claim at [39].15 At [40].(c) In the absence of proper information that communities could see andtest, they could not express informed views and were participating inthe dark. In this sense the natural justice element of the LGA'srequirements broke down.(d) The procedural failures comprised a breach of ss 76, 77, 78 and 92 ofthe LGA. Additionally, the breach of the mandatory disclosurerequirements infringed ss 93C and 93G.(e) In short, the Napier community had been led by the Council tounderstand that the Council proposed to re-develop Onekawa and tobuild a new 50m pool. The "Council's decision to that effect" reflectedthe overwhelming preference of the Napier communities followingthree years of consultation and stakeholder engagement.Council's position[62] The Council denies it was required to consult the community about the fact thePrebensen Drive option had become its preferred option before undertakingconsultation on that very option through the consultation document.[63] For the respondent, Mr McNamara submitted the LGA imposed no obligationto consult at all stages of a decision-making process. Nor does any such obligationarise at common law. In light of the business case consultation in 2017 and the furtherinformation received about the costs and risks of proceeding with the 50m option, aswell as the understanding that a new 50m pool was to be developed by the HawkesBay Trust, the Council was well equipped to decide that its preferred option was thePrebensen Drive option and that this and the option of the 25 x 25 m pool at Onekawa,were to be the two options for inclusion in the consultation document.A preliminary matter[64] Before discussing the parties' respective arguments, it is necessary to saysomething about the misapprehension upon which the Society advances that part of itscase set out at [61](e) above.[65] The Society contends the Council actually proposed to build a 50m poolthrough re-development of the Onekawa facility. The Society submits the Councilmade a "decision to that effect".[66] The evidence shows the Council made no such decision. At its meeting on8 November 2017 the Council was presented with the results of the communityengagement. The Council was in no doubt as to the community's "clear steer", as theminutes record.[67] While it is clear from the minutes that the Council regarded the aquatic centreexpansion as "an extremely exciting project", the Council did not resolve to build a50m pool at Onekawa. The Council resolved to:(i) Receive the summary of community engagement.(ii) Support the development of designs, schedule and costings for Option 3[the new 50m build option] to be considered during the 2018-28 LTPprocess.[68] The first part of the resolution at "b" was achieved, but not the second. Thenew 50m build option was not put out for consultation during the 2018-2028 LTPprocess and the Society says (in effect) the Council acted unlawfully in deciding totake the Onekawa option off the table.[69] Mr Williams submitted that the first core issue in the case is whether, havingregard to the significance of the decision, the Council failed to discharge the obligationto consult imposed by Part 6 of the LGA because it elected to proceed solely throughthe LTP process without taking a prior engagement step in relation to its selection ofthe Prebensen Drive option for consultation.[70] It has been difficult at times to pin down the exercise of statutory power thatthe Society challenges.16 Although the statement of claim is clear in identifying theCouncil's resolution on 29 June 2018 as the impugned decision, the Society's focusnevertheless tended to shift at times. That may be attributable to the sense of grievance16 An application for judicial review must identify the statutory power that is the subject of thejudicial review challenge.which comes through strongly in the affidavit evidence for the Society.Graeme Sutherland, for example, the Chair of the Society described himself as"incensed by the process".[71] People are deeply disappointed with the Council's non-pursuit of the Onekawaoption and are apprehensive about a range of issues, such as: the affordability ofswimming if the entry fee increases; accessibility, distance and public transportationoptions; and that the Council has not paid attention to the fact the heart of the Napiercommunity is in the Onekawa facility. Some deponents express concern about thecost of the project and ask whether ratepayers' money is being spent wisely.[72] But, as Mr Williams acknowledged at the outset, this is not a case about whichswimming pool option is best for Napier. It is a case about the process followed bythe Council. Yet the challenged decision is described in counsel's submissions as thedecision to close the Onekawa facility and embark on the "Council's largest evercapital project for a new Aquatic Centre on Prebensen Drive". To the extent this isidentified as the decision resulting from a flawed consultation process:(a) the council did not make any such decision; and(b) it is at odds with the resolution identified in the statement of claim asbeing the decision in respect of which the Society seeks a declarationof invalidity.[73] It is important to restate that the decision being challenged for invalidity is theCouncil's resolution on 29 June 2018 to adopt the 2018–2028 LTP.[74] I address, therefore, the requirements on the Council in making that decision.Discussion[75] The starting point is s 76(1) of the LGA which required the decision to be madein accordance with such of the provisions of ss 77, 78, 80, 81 and 82 as wereapplicable. In this case, the Council had four particular statutory obligations.[76] First, in the course of its decision-making process the Council was required to"seek to identify all reasonably practicable options for the achievement of theobjective" of its decision and assess the advantages and disadvantages of the options.17[77] Secondly, s 78(1) required the Council, in the course of its decision-makingprocess, to consider the views and preferences of persons likely to be affected or havean interest in the matter. In this case the matter was the re-development of the Napieraquatic centre. But the Council was not required by s 78 alone to undertake anyconsultation process or procedure.18[78] Thirdly, s 79, to which ss 77 and 78 are subject, provides:79 Compliance with procedures in relation to decisions(1) It is the responsibility of a local authority to make, in itsdiscretion, judgments—(a) about how to achieve compliance with sections 77 and 78that is largely in proportion to the significance of thematters affected by the decision as determined inaccordance with the policy under section 76AA; and(b) about, in particular,—(i) the extent to which different options are to beidentified and assessed; and(ii) the degree to which benefits and costs are to bequantified; and(iii) the extent and detail of the information to beconsidered; and(iv) the extent and nature of any written record to be keptof the manner in which it has complied with thosesections.(2) In making judgments under subsection (1), a local authoritymust have regard to the significance of all relevant matters and,in addition, to—(a) the principles set out in section 14; and(b) the extent of the local authority's resources; and17 Local Government Act 2002, s 77(1)(a)–(b).18 Section 78(3).(c) the extent to which the nature of a decision, or thecircumstances in which a decision is taken, allow the localauthority scope and opportunity to consider a range ofoptions or the views and preferences of other persons.[79] So, in this case, s 79 gave the Council the responsibility for making, in itsdiscretion, judgments about:19(a) how to achieve compliance with ss 77 and 78 that is largely inproportion to the significance of the matters affected by thedecision as determined in accordance with the significance andengagement policy under s 76AA; and(b) the extent to which different options are to be identified andassessed; the degree to which benefits and costs are to bequantified; the extent and details of the information to beconsidered; and the extent and nature of any written record to bekept of the manner in which it has complied with those sections.[80] The fourth and final particular statutory obligation required any consultationthe Council undertook to be in accordance with the principles in s 82(1). Section 82provides:82 Principles of consultation(1) Consultation that a local authority undertakes in relation to anydecision or other matter must be undertaken, subject to subsections (3) to (5),in accordance with the following principles:(a) that persons who will or may be affected by, or have aninterest in, the decision or matter should be provided by thelocal authority with reasonable access to relevant informationin a manner and format that is appropriate to the preferencesand needs of those persons:(b) that persons who will or may be affected by, or have aninterest in, the decision or matter should be encouraged by thelocal authority to present their views to the local authority:19 Section 79(1)(a) and (b).(c) that persons who are invited or encouraged to present theirviews to the local authority should be given clear informationby the local authority concerning the purpose of theconsultation and the scope of the decisions to be takenfollowing the consideration of views presented:(d) that persons who wish to have their views on the decision ormatter considered by the local authority should be providedby the local authority with a reasonable opportunity to presentthose views to the local authority in a manner and format thatis appropriate to the preferences and needs of those persons:(e) that the views presented to the local authority should bereceived by the local authority with an open mind and shouldbe given by the local authority, in making a decision, dueconsideration:(f) that persons who present views to the local authority shouldhave access to a clear record or description of relevantdecisions made by the local authority and explanatorymaterial relating to the decisions, which may include, forexample, reports relating to the matter that were consideredbefore the decisions were made(2) A local authority must ensure that it has in place processes forconsulting with Māori in accordance with subsection (1).[81] Subsection (3) provides that, subject to subs (4) and (5), the principles insubs (1) "are to be observed by a local authority in such manner as the local authorityconsiders in its discretion, to be appropriate in any particular instance". In exercisingits discretion under subs (3) the local authority must have regard to:20(a) the requirements of s 78; and(b) the extent to which the current views and preferences of personswho will or may be affected by, or have an interest in, the decisionor matter are known to the local authority; and(c) the nature and significance of the decision or matter, including itslikely impact from the perspective of the persons who will or may beaffected by, or have an interest in, the decision or matter; and(d) the provisions of Part 1 of the Local Government OfficialInformation and Meetings Act 1987 (which Part, among otherthings, sets out the circumstances in which there is good reason forwithholding local authority information); and(e) the costs and benefits of any consultation process or procedure.20 Section 82(4).[82] These provisions were discussed by the Court of Appeal in Wellington CityCouncil v Minotaur Custodians Ltd.21 The Court was concerned with the highlyprescriptive manner by which s 78(2) required a local authority to give considerationto the views and preferences of people likely to be affected or to have an interest inthe matter. Section 78(2) has since been repealed. The repeal of subs (2) does not,however, diminish the relevance of Minotaur to this proceeding. The Court of Appealrecently confirmed Minotaur as "the leading decision concerning the obligation onlocal authorities to consult".22[83] In relation to the principles of consultation set out in s 82, the Court of Appealin Minotaur said:[38] The effect of this provision is that, when a council does choose toconsult, certain "principles" apply to the particular forms of consultation thecouncil adopts: most relevantly, those affected should have access to relevantinformation in an appropriate format and be encouraged to present their viewshaving been given clear information as to both the purpose of the consultationand the scope of any likely decision. Further, a council must ensure thatinterested or affected parties have a reasonable opportunity to present theirviews, and that those views are received by council with an open mind.[39] In substance, these principles are really basic performance standards.Subsection (3) is the counterweight. This restates (now for the third time) thatthe "how" of compliance with these guidelines is a matter for the localauthority. That proposition is subject to the following further considerationswhich the local authority must (relevantly) bear in mind:(a) the terms of s 78 including, presumably, the fact that it issubject to the reservation to the local authority of the decisionof how to implement;(b) whether the views of those affected are already known to thelocal authority;(c) the significance of the issue in question for those affected; and(d) the costs and benefits of consultation.[84] In relation to s 79, which makes it the responsibility of a local authority in itsdiscretion to make judgements about how to achieve compliance with ss 77 and 78,the Court of Appeal said:21 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.22 Evans v Clutha District Council [2020] NZCA 5 at [24].[41] Section 79 begins with the position that it is for the local authority todecide in its discretion how ss 77 and 78 are to be complied with — the fourthsuch restatement of that principle in pt 6. Importantly, s 79(1)(b)(iv) providesthat it is for the local authority to decide the extent and nature of any writtenrecord to be kept of the manner in which it has complied with ss 77 and 78.We will return to that provision below.[42] In summary, pt 6 of the LGA carefully and repeatedly rejects the ideathat there is to be found in its provisions any duty to consult with affected orinterested parties. Instead, local authorities are given a deliberately broaddiscretion as to whether to consult, and, if so, how. That does not mean,however, that there are no limits on a council's discretion. Like all statutorydecisions, consultation decisions must be rational and consistent with theobjects of the LGA and the particular controlling provisions. We consider thisis the real issue in this case, and we return to it below.[85] The applicant argues that the challenged decision is invalid because theCouncil failed to comply with the statutory requirements in relation to the specialconsultative procedure as provided in ss 93(B), 93(C) and 93(G) of the LGA andbecause the Council failed to comply with the requirements of ss 76, 77, 78, 80, 81and 82 of the LGA.Decision[86] The Society relies on the requirement imposed by s 78 on a local authority toconsider the views and preferences of persons likely to be affected or have an interestin the matter. Mr Williams submitted the Onekawa site option was the least preferredoption by a considerable margin. Mr Williams submitted that the flaw in therespondent's position is revealed in Mr Jack's affidavit evidence that: consultation on the two options through the LTP would test the level ofcommunity support for the proposed Prebensen Drive location and the closureof Onekawa facilities, or the alternative option included in the 2018 LTPconsultation document (existing pool extension at Onekawa).[87] Mr Williams submitted it is the assumption underlying this evidence that liesat the heart of the case because, simply put, the Council may have had a goodunderstanding about pool options and facilities for the Onekawa site but it had nounderstanding whatsoever of community views and preferences regarding thePrebensen Drive site in its own right or by way of comparison with Onekawa or byway of comparison with any other site in Napier.[88] In my view, the submission proceeds on a misunderstanding of the nature ofthe obligation under s 78. There is no general consultation obligation attaching to alldecisions of a local authority. The Court of Appeal has twice emphasised that "pt 6 ofthe LGA carefully and repeatedly rejects the idea that there is to be found in itsprovisions any duty to consult ".23 (Emphasis added.)[89] The point is put beyond doubt by the repeal of s 78(2). The explanatory noteto the Local Government Act 2002 Amendment Bill 2010 stated the amendments wereintended to operate at two levels: a strategic level and an operational level. At theoperational level the 2010 bill aimed to simplify local authorities' decision-makingprocesses. This was to be achieved by (inter alia) removing unnecessary consultation.Accordingly, the four different stages in the decision-making process when a localauthority was required by s 78(2) to consider the views and preferences of personslikely to be affected by or have an interest in the matter, were repealed. The bill alsoremoved most of the LGA's requirements to use the special consultative procedure andmodernised that procedure so new techniques for communicating and consulting withthe public could be accommodated.24Having more flexibility about how to consult will enable Councils to designdecision-making and community engagement processes that are appropriateto different circumstances, and in proportion to the matter being considered.[90] In the course of its decision-making process on the Napier aquatic centre, theCouncil considered the community's views at key stages of its decision-making.(a) It considered the community views obtained between September andOctober 2017 following the Council's engagement on the three optionsfrom the business case and before resolving on 8 November 2017 tosupport the development of designs and costings for the Onekawaoption, to be considered during the 2018–2028 LTP consultation.(b) The Council considered community views again when it decided toinclude in the consultation document the Prebensen Drive option andthe "other option" and to exclude the 50m pool option at Onekawa.23 Evans v Clutha District Council, above n 22, at [24].24 Local Government Act 2002 Amendment Bill (No 3) 2013 Stage One.Mr Jack's email of 28 March 2018 to Councillors reminded them thatthe "community feedback was for a 50m pool" but it was no longer afeasible option. Mr Jack proposed amendments to the consultationdocument that addressed the continuing increases in construction andoperating costs and the cost of the concept to households amounting tomore than a $100 annual addition to rates. All but two Councillors(who did not respond) replied expressing support for removal of the50m option from the consultation document.(c) The Council considered community views once again when it met forthe purpose of considering the community's submissions on the LTPconsultation document.[91] At no stage was the Council in any doubt as to the community's strongpreference for a 50m pool at Onekawa. However, the Council was not required byany provision in the LGA to give effect to that preference. The relevant obligationrequired the Council, in the course of its decision-making, to consider the views andpreferences of people likely to be affected or have an interest in the matter. TheCouncil had formed the view it was no long reasonably practicable, or financiallyprudent, to proceed with the 50m Onekawa pool option. The evidence shows theCouncil met the relevant obligation on it before making the decision to exclude theOnekawa 50m pool option from the consultation document and to invite thecommunity's feedback on the options contained in that consultation document.[92] Nor is the position changed by s 79. The Society argues that in exercising thediscretion given to the Council by s 82(3) of the Act, the Council was required to haveregard to the nature and significance of the decision or matter, and that therefore thereference in s 79(1) to the significance and engagement policy is critical.[93] Section 79 confers on a local authority a discretion about how, in the course ofits decision-making, it will identify and assess practicable options25 and how it willconsider community views and preferences.26 Compliance with ss 77 and 78 is to be25 Local Government Act 2002, s 77.26 Section 78."largely in proportion" to the significance of a matter as determined in accordancewith the local authority's significance and engagement policy. But that is only one ofa range of matters in respect of which s 79 expects a local authority to makediscretionary judgments.[94] In this case, the Council decided on 8 November 2017 that its then preferredoption (a 50m pool at a re-developed Onekawa facility) would be considered duringthe LTP process. Given the Council's decision on 8 November, and the range of"particular" matters s 79 required to be borne in mind (including the degree to whichbenefits and costs are to be quantified), it was reasonable for the Council to use theLTP process as the mechanism for consulting on the practicable options, including itsthen favoured option.[95] The consultation document included an alternative option (on the Onekawasite) that avoided the costs and risks of the 50m option. I agree with Mr McNamara'scharacterisation of the Council's approach to consultation as being "rational andconsistent with the objects of the LGA".27[96] This ground of review is not established.Second ground of review: misleading consultation document[97] The second ground of review is directed at the consultation document itselfwhich, the Society claims, misled ratepayers and potential submitters as to the relativecosts of the "proposed option" as compared to the other option. The Society's case isthat, in breach of s 93B of the Act, the consultation document failed to clearly explainthe implications of the Council's decision.28 In particular, it is said the Council didnot give a "fair representation" of the options being presented, nor their consequencesand implications for rates and debt.[98] Mr Williams submitted the acid test is applied in this case by asking: "whatwould the reasonable ratepayer have understood was being presented?" That test is27 Citing Wellington City Council v Minotaur Custodians Ltd above, n 21.28 That is, the decision in respect of which the Society seeks a declaration of invalidity. The decisionis set out at [36] above.said to reflect the straightforward interpretation of s 93B(a)(ii) of the LGA.Specifically, Mr Williams asked whether potential submitters on the consultationdocument would have realised the stated $51 per annum rate increase for the Onekawaextension option was only over 15 years whereas the $67 per annum rate increase forthe Prebensen Drive option would be levied over 30 years?[99] The Council's position is that the consultation document correctly disclosedthe rates impact of the Prebensen Drive option and the Onekawa option.Mr McNamara submitted the consultation document complied with the statutoryrequirements of a consultation document. Furthermore, Audit New Zealand wassatisfied the consultation document included appropriate information to enableconsultation on key issues.Discussion[100] In his evidence, Mr Jack explained that the capital cost of the Prebensen Driveoption would be loan funded over 30 years to reflect the long-term nature of the assetand intergenerational factors. This was seen as an appropriate basis for spreading thecost of new community assets that would benefit several generations of residents.[101] By contrast the 15-year loan for the Onekawa option was aligned with the lifeof the existing assets to ensure that after 15 years, when the assets were at the end oftheir useful life, there would be no outstanding loan. The loan term was also said tobe aligned to future decisions for the site. The Onekawa option did not involve a fullupgrade. Existing buildings would need to be addressed in the future.[102] Section 93B provides:93B Purpose of consultation document for long-term planThe purpose of the consultation document is to provide an effective basis forpublic participation in local authority decision-making processes relating tothe content of a long-term plan by—(a) providing a fair representation of the matters that are proposed forinclusion in the long-term plan, and presenting these in a way that—(i) explains the overall objectives of the proposals, and how rates,debt, and levels of service might be affected; and(ii) can be readily understood by interested or affected people; and(b) identifying and explaining to the people of the district or region,significant and other important issues and choices facing the localauthority and district or region, and the consequences of thosechoices; and(c) informing discussions between the local authority and itscommunities about the matters in paragraphs (a) and (b).[103] The content of a consultation document for adoption of a long-term plan isgoverned by s 93C which provides:93C Content of consultation document for adoption of long-term plan(1) The content of the consultation document for the adoption of a long-term plan must be such as the local authority considers on reasonablegrounds will achieve the purpose set out in section 93B.(2) Without limiting subsection (1), the consultation document mustdescribe—(a) each issue that the local authority determines should beincluded having had regard to—(i) the significance and engagement policy adoptedunder section 76AA; and(ii) the importance of other matters to the district and itscommunities; and(b) for each issue identified under paragraph (a),—(i) the principal options for addressing the issue and theimplications (including financial implications) ofeach of those options; and(ii) the local authority's proposal, if any, for addressingthe issue; and(iii) the likely consequences of proceeding with theproposal on the local authority's rates, debt, andlevels of service; and(emphasis added)(3) The consultation document—(a) must be presented in as concise and simple a manner as isconsistent with section 93B and this section; and(b) without limiting paragraph (a), must not contain, or haveattached to it,—(i) a draft of the long-term plan, as proposed to beadopted; or(ii) a full draft of any policy; or(iii) a full draft of the local authority's financial strategyor infrastructure strategy; or(iv) any detailed information, whether described in Part 1of Schedule 10 or otherwise, that is not necessary ordesirable for the purposes of subsections (1) and (2);and(c) must state where members of the public may obtaininformation adopted by the local authority under section 93G,which may include, for example, providing links or referencesto the relevant documents on an Internet site maintained by oron behalf of the local authority; and[104] Although it is set out at [29] above, for convenience I reproduce from theconsultation document the table in which the options were summarised.Options at a glance:OptionTotalwaterspaceCost tobuildTotalcost tooperateIncreasesto ratesper year25m x 25mPools andPlayPoolextension1274m2Excludeszerodepth1127m2$41.3 m$20.2 m$3.3 m$2.8 m$67$51[105] The following further relevant detail in relation to the Prebensen Drive optionwas provided:25m x 25m Pools and Play (new location) - $41.3 million capital $34 millionloans, $7.3 million reserves) / $3.3 million total operating per year (rates anduser pays) – 2.75% total rate increase, $67 average rates increase perhousehold.[106] As can be seen, the rates increase per household of $67 was restated. In relationto the Onekawa extension option, the following further details were provided:Existing Pool Extension - $20.2 million capital ($13.1 million loans,$7.1 million reserves) / $2.8 million total operating per year (rates and userpays) – 2.55% total rate increase, $51 average rates increase per household.[107] As with the Prebensen Drive option, the average rates increase of $51 set outin the table, was restated per household.[108] Detailed financial information was available to those who were interested.Under a heading, WANT TO KNOW MORE? readers and potential submitters wereadvised:You will find a selection of documents giving more detail atwww.sayitnapier.nz you can view:Napier Aquatic Centre Business Case Options for ExpansionFinancial Prudence MeasuresFinancial StrategyFinancial StatementsFinancial PoliciesGroup Activity StatementsInfrastructure Strategy[109] Sections 93B and 93C, in combination, have as their purpose the provision ofsufficient information to enable effective public participation in local authoritydecision-making processes relating to the content of a LTP.29 While it will be for thelocal authority, on reasonable grounds, to decide whether the content of a consultationdocument achieves that purpose,30 it is a fair construction of s 93B(a)–(c) to say that alocal authority will not have provided an effective basis for public participation if theconsultation document:31(a) fails to provide a "fair representation" of the matters proposed forinclusion in the LTP; or29 Local Government Act 2002, s 93B.30 Section 93C(1).31 Section 93B(a)(i)–(ii).(b) does not present the matters in a way that explains the overall objectivesof the proposals, and how rates debt and levels of service might beaffected; or(c) can be readily understood by interested or affected people.[110] The Society says that, as at least six Councillors who voted to adopt the LTPPrebensen Drive option did not apparently understand how the additional rates statedfor each option had been derived, the LTP process failed to meet the requirements ofss 93 and 93C by presenting "at least potentially misleading information onimplications for rates and council debt as part of the consultation document". Insupport of the Society's position, Mr Williams cited the High Court decision inCreswick Valley Residents Association Inc v Wellington City Council in whichMackenzie J held that information provided to the public was materially misleading.32[111] The requirement to provide a "fair representation" is not the same as arequirement to provide detailed information, or actual documents. In fact,s 93C(3)(b)(iv) specifically proscribes such a broad approach:(3) The consultation document—(a) must be presented in as concise and simple a manner as isconsistent with section 93B and this section; and(b) without limiting (a), must not contain, or have attached to it,(emphasis added)(iv) any detailed information, whether described in Part 1of Schedule 10 or otherwise, that is not necessary or desirablefor the purposes of subsections (1) and (2);[112] What was required of the consultation document was "a fair representation ofthe matters proposed for inclusion in the long-term plan" and (relevantly) how rates,debt and levels of service might be affected.3332 Creswick Valley Residents Association Inc v Wellington City Council [2012] NZHC 644 at [64].33 Local Government Act 2002, s 93B(a).[113] It was not necessary that the consultation document contain the particular loanterms, or the rationale for the loan terms, in order to provide an effective basis forpublic participation in the Council's decision-making processes. In relation to the twoswimming facility options, the consultation document correctly disclosed the ratesimplications for households. And this was not the only information available tointerested and affected parties. Further detail and information lay behind theconsultation document – as required by s 93C(3)(c). The Society has not complainedabout the accuracy of this information or otherwise contested its sufficiency.[114] I note as well that the consultation document does not state the period of timefor which either the $67 or $51 rates increase would operate. Nor could it. Theduration of specific rates increases resulting from one particular project would becontingent on a range of factor, including movement in interest rates and local bodyelections. I observe, however, the smaller rates increase of $51 was associated withan asset having a lifespan of only 15 years before requiring "refurbishment" whereasthe lifespan of the Prebensen Drive option was projected to be 50 years.[115] There is a further matter. A consultation document must contain a report fromthe Auditor-General as to whether the document gives effect to the s 93B purpose andas to the quality of the information and assumptions underlying the information in theconsultation document.34 In an unmodified opinion provided on April 2018, Audit NewZealand was satisfied the consultation document met the statutory purpose and wassatisfied it provided an effective basis for consultation. The final report dated 18 June2018 noted that the initial draft of the consultation document— contained gaps in the information provided in relation to theFinance and Infrastructure Strategies. Also in each of the items beingconsulted on the rates increases, the effect on borrowings and theeffect on service level were not initially presented with the issue.These were addressed in the final [consultation document] that wasadopted.[116] The applicant has not established this ground of review.34 Section 94C(4).Third ground of review: legitimate expectation[117] Under this head of review the Society claims the impugned decision is invalidbecause, by proceeding to formal consultation on the LTP, the Council breached theNapier communities' legitimate expectation that the Council would undertake apreliminary process of informal consultation and targeted consultation with specificstakeholders prior to release of the consultation document.[118] At the hearing, Mr Williams frankly acknowledged that this was not a strongground of review. I agree.[119] In Minotaur the Court of Appeal stated:35[48] Because the clear intention of Part 6 is to give councils a widediscretion in this field, it will always be difficult to establish a concurrentcommon law duty to consult except in truly exceptional cases But there isno need to establish a separate and additional common law duty to consult tobring irrationality principles into play in a consultation case, because, therequirement to act rationally is inherent in Part 6.[120] In this case, the Council distributed consultation material that accorded withthe requirements of the Act. It has not breached the statutory obligations on it in thatregard and, adopting the language of the Court in Minotaur, there is "no need forrecourse to a common law sourced fairness obligation in order to bring the Council toaccount".36[121] This ground of review is not established.[122] The fourth ground of review being no longer pursued, I move to the fifthground.35 Wellington City Council v Minotaur Custodians Ltd above, n 21.36 At [47].Fifth ground of review: inadequate informationSociety's case[123] The Society claims the Council failed to obtain sufficient information,proportionate to the significance of the impugned decision, to support a reasoned andreasonable assessment of the relative merits of the two options in the consultationdocument or to justify abandoning re-development of the Onekawa facility.[124] In relation to this aspect of the fifth ground of review, the Society makes thefollowing points.(a) The Council did not commission or receive any specific report as to soilcontamination risks associated with the re-development of theOnekawa facility. The reports it received in December 2018 from PDPdid not support the assumptions in the TBIG estimates and the RLBmaster plan budget as to the degree of contamination risk andassociated costs, or otherwise support the decision to proceed with thePrebensen Drive option in preference to the re-development of theOnekawa facility.(b) There was a failure to provide sufficient reliable information toCouncillors to enable them to make their decisions. In particular,TBIG's cost loaded schedule and risk register had not been madeavailable to Councillors prior to Council deciding to include thePrebensen Drive site as its "proposed Option" in the consultationdocument.(c) The Society characterises the sharing of the rationale forrecommending an alternative site option as "ad-hoc, piecemeal or atbest sequential" through seminars on 31 January, 14 February and24 April 2018".(d) Only in September 2018, after the impugned decision, were Councillorsgiven a more complete understanding of this information.(e) At no stage in the LTP process was the TBIG information or RLBmaster plan budget disclosed or released.[125] The Society also argues that ratepayers were denied the opportunity to "seeand test" the information which the Council relied on in deciding to proceed with thePrebensen Drive site and that given the Council's proposed commitment of $41m ofratepayer funding to the Prebensen Drive proposal ratepayers deserved at least thismuch.Council's position[126] Broadly speaking, the Council's position is that the Society cannot sustain aclaim of breach of pt 6 of the Act based on the level of information provided toCouncillors. And the information provided to the community through the 2018 LTPprocess, through the consultation document and otherwise, met the requirements ofss 82, 93B and 93C of the LGA.Discussion[127] It is important to identify the actual information the Society claims wasinadequate for the purpose of Council making an informed decision.[128] In a nutshell, the Society's case is that the Council decided to abandon theOnekawa facility and advance the Prebensen Drive site as its preferred option becauseit assumed "historical issues" with the Onekawa site's use as a former landfill. It iscommon ground that Councillors were not given the actual TBIG documents.Mr Williams submitted that the extent to which Councillors received a full explanationof Dr Plested's rationale for recommending an alternative site is therefore unclear.[129] My close review of the evidence leads me to a different view from that whichthe Society takes about the factual basis for the Council's concerns about costs,including the costs associated with contamination issues at the Onekawa site.[130] The Society relies on the affidavit evidence of Ms Wise who deposed to thelimited information provided to Councillors from the TBIG costs schedule and risksregister. Ms Wise stated:The only information provided to us from the TBIG report in the lead up tothe LTP consultation and hearing process was the additional $800k cost forthe removal of the contaminated soil. The TBIG risk register whichcontained a total of 44 risks at the Onekawa site was not provided tocouncillors until a seminar in September 2018.[131] Significantly, the Society does not challenge the accuracy of TBIG's estimatedcosts of $49.1m. The criticism is that the $800,000 component was referenced to theoriginal Onekawa 50m pool proposal and was not applicable to the 25x25m Onekawa"Other Option"37 in the consultation document.[132] The criticism overlooks certain facts. The estimated cost of $800,000 forremoving contaminated soil was only one of the 44 risks that TBIG costed in relationto the 50m Onekawa option. There were other costed risks, for example:(a) Increases over estimates of trade costs were projected. TBIG notedsuch a risk was "typical for a project of this size and complexity". Thisparticular risk was assessed as "high". The cost associated with the riskwas estimated to be $3.5m.(b) Likewise, the risk of escalating construction costs, assessed as"significant", had an associated estimated cost of $3.5m.[133] The essential point is that, in light of the overall estimated cost of the Onekawa50m pool option ($49.1m), the capital cost of the other two options consulted uponwas less and those options were more affordable that the original Onekawa 50m poolconcept.38[134] Mr Williams submitted that for the 25m Onekawa pool option (described in theconsultation document as the "Other Option") the $800,000 figure would be a fractionof that used to brief the Councillors prior to making their decision to prefer Prebensen37 See [30] above.38 Prebensen Drive, $41.3m and Onekawa $20.2m.Drive over the "'Other Option'". The Society drew support for its position from theaffidavit evidence of Charles Suckling.[135] Dr Suckling is a medical doctor, resident in Napier and a member of theapplicant Society. Dr Suckling has a Masters degree in public health but disavowedbeing an expert in soil contamination. Dr Suckling referred to "discussions byCouncillors and Council staff about the Proposed Complex" and claims made by theCouncil that the "soil at the Onekawa Park site was Toxic". The claims seemed toDr Suckling to be "vague and emotive".[136] Dr Suckling requested from the Council all the reports and documents it hadcommissioned on the Onekawa site over recent years. In his affidavit, Dr Sucklinglisted the four reports he received, each of which he described as "approaching thequestion of 'Toxicity' rationally and objectively". Dr Suckling deposed tosummarising information from the reports and providing his three-page summary tothe Council to assist it. Dr Suckling stressed in his affidavit that it was "not an expertwitness document, it is merely a summary of the experts' opinions."[137] Dr Suckling expressed concern that members of the community, andCouncillors, "may have made misinformed decisions about the Proposed Complex dueto the Council's emphasis placed on the 'toxicity' at Onekawa Park". Dr Suckling'sconcern is founded on his assertion that "the reports did not advise there would be anysignificant risk to excavation workers due to the limited duration of that particularwork" and that the reports recommended independent investigation "using coresamples" and, to Dr Suckling's knowledge, that had not happened.[138] The Society also relied on the evidence of Graham Sutherland, the Chair of theSociety. Mr Sutherland filed three affidavits. For immediate purposes the Societyrelies on a document exhibited to Mr Sutherland's affidavit sworn on 15 July 2019.This six-page letter dated 19 December 2018 is from PDP's Technical Director,Contaminated Land and responds to a Council request for the Technical Director'sassessment—as a civil engineer and contaminated land specialist on the implications ofredeveloping the Napier Aquatic Centre at its current site at Onekawa Park,compared with developing a new centre at the Prebensen Drive site. OnekawaPark is known to have soil contamination as a result of past municipallandfilling activities.[139] Mr Williams submitted that the expert opinion from PDP "confirms theposition advanced in Dr Suckling's affidavit, ie, that 'contamination at the Onekawasite is not particularly great, and the onsite risks during construction should be readilymanageable'."[140] The passage quoted in the submission was from the PDP report itself but istaken out of context. The context is important. The context is provided by PDP's"Conclusion":All other things being equal, a site free of contamination is easier and cheaperto develop than a site with soil contamination. There is also additional riskfor the Onekawa site because the full extent and degree of contamination isnot known and there is uncertainty whether all the soil would be accepted atthe Omarunui Landfill. While the known contamination at the Onekawa siteis not particularly great, and the onsite risks during construction should bereadily manageable, additional time will be involved and greater costs willarise relative to a "clean" site from• additional soil and possibly ground water investigation• additional consenting requirements• additional onsite excavation management (particularly if asbestos is present)• possibly managing contaminated water from excavation dewatering• additional soil disposal costsThe greatest additional cost is probably from soil disposal, depending on thevolume of soil requiring disposal.[Emphasis added to highlight the words the Society relies upon.][141] As I recorded earlier, it is common ground that TBIG's schedule and riskregister were not physically provided to the Council. That fact is at the heart of theSociety's criticism that the information which led Council to the decision it took wasnot shared with the Council. At one point it was even suggested the information was"in Dr Plested's head". The evidence does not support the Society's position nor itscontention that the Council's preference for the Prebensen Drive option was driven by"assumed historical issues".[142] In his capacity as the Council's Manager Design and Projects, Dr Plested isresponsible for management, design and delivery of capital infrastructure projects.Predictably, the Council looked to Dr Plested for relevant advice. Dr Plested holds afirst class honours degree in civil engineering and a PhD in geo-technical engineering.Dr Plested had been employed previously as a contaminated site investigation andremediation engineer and programme manager. He brought to his position in theCouncil his significant experience in leading projects and teams responsible forassessing the nature and extent of contamination from industrial activities, includinglandfill disposal and direct burial causing contamination of groundwater and soil inresidential communities and on industrial sites. To the extent that aspects ofDr Plested's evidence might be offered as expert evidence, Dr Plested had read theCode of Conduct for Expert Witnesses and otherwise qualified himself as an expert.[143] In his first affidavit Dr Plested described the process that led to hisrecommendation to the Council.39 In summary:(a) TBIG's estimated costs of $800,000 for disposing of unsuitable andcontaminated landfill debris to form a sound foundation for a pool didnot cover the management mitigation of the risk from airbornecontaminants (such as asbestos) that might be released duringexcavation of the Onekawa site.(b) During the week of 11 December 2017, TBIG's costs estimate andidentified risks were presented to and discussed with senior Councilleadership who acknowledged areas of significant concern regarding"value for money" and the risks the proposal presented.(c) Because the 50m pool exceeded budget expectations, TBIG estimatedthe cost of a 25m pool using the same methodology. At the per squaremeter cost of $15,500 TBIG used at the time, TBIG estimated the pool39 Dr Plested's recommendation is set out at [19] above.cost would reduce by about $9.7m to approximately $39m. Thisinformation was used by Council staff to further assess affordability ofvarious options and pool features.(d) From his experience investigating and determining risk-basedstrategies for remediating contaminated sites, Dr Plested was aware ofthe risks presented by attempting to build on landfills. Dr Plestedexplained that such risks include "unknowns regarding settlementand/or the need to manage exposure of workers and residents tocontaminants during remediation of such sites and therefore theuncertainty in costs this represents".(e) Dr Plested's specific concerns when making his recommendation wereabout cost and contamination.(i) In relation to cost, beyond the issue of value to the ratepayer inmanaging and mitigating the risks of building at Onekawa ratherthan an uncontaminated site, the costs estimated by TBIGexceeded Council's $39m budget. As well, given the need toprice the disposal of contaminated landfill soils and debris at$800,000, excluding other risks, Dr Plested believed a means ofavoiding these costs should be investigated.(ii) In relation to contamination, the following points were materialto Dr Plested's recommendation to Council:• To a large extent, the Onekawa site covered landfill debriswhich is inherently variable in nature and should not bebuilt on without careful foundation analysis and design.Due to the size of the proposed pool facility, encroachmenton landfill material was unavoidable while endeavouring tokeep the existing facility operational.• Excavation, while a possible solution, introduces the risk ofexposure to contaminants. Based on Dr Plested'sexperience investigating and remediating contaminatedsites and his review of the PDP reports dated 2009 and 2011,investigations at Onekawa had not considered the risks ofairborne contaminants exposed during the excavation andtransport of large volumes of contaminated debris. "Thisexposure pathway and risk warranted furtherconsideration."• The PDP report of 2011 stated that asbestos fibres were notdetected in the six samples tested but that as the landfill wasactive, encountering asbestos was probable. To manage therisks during excavation personal protective equipmentwould be required, potentially air control monitoring andadditional care and monitoring of vehicles leaving the sitewould be necessary to ensure contaminants were nottracked into the community.• In accordance with the Council's Hazard and RiskManagement Procedure June 2017, the first step in riskmanagement is "elimination".• The site is located in a community surrounded by facilitiesfor the very young, "one of the most sensitive receptorgroups for exposure to contaminants". Accordingly,Dr Plested recommended consideration of alternative sitesbefore proceeding with Onekawa.[144] The Society is critical of the fact that Dr Plested's rationale for hisrecommendation was not shared, was not publicly available and was not provided toCouncillors prior to release of the consultation document or prior to Council makingthe impugned decision.[145] The complaint that Dr Plested's rationale, or thinking, was not publiclyavailable, is not well founded. The law does not require a consultation document tocontain the kind, or level, of detail that influenced Dr Plested in forming hisrecommendation to the Council. In this respect, the Society's expectations fail to takerealistic account of the requirements of the LGA.[146] The aquatic centre was one of five projects covered by the consultationdocument although, undoubtedly, it was the largest project. The purpose of aconsultation document is to provide an effective basis for public participation in localauthority decision-making. Section 93B requires a fair representation of mattersproposed for inclusion in the long-term plan. Specifically, the consultation documentmust be presented as concisely and simply as is consistent with the purpose of aconsultation document for a LTP and it "must not contain any detailed information".40There was simply no legal obligation on the Council to include the level of detail theSociety insists should have been publicly available.[147] Nor does the evidence support the Society's claim that the Council had aninadequate basis upon which to make a reasoned and informed decision. There werethree key reasons for not including a 50m pool option at Onekawa in the consultationdocument:(a) updated information as to the construction and operating costs for thatoption;(b) new information about the status of a proposal to build a 50m pool atthe Hastings Regional Sports Park; and(c) better understanding of issues in developing the Onekawa site in lightof its historical use as a landfill.[148] The consultation document referred to all three factors then stated: "[b]earingall this in mind, we have taken a fresh look at where the aquatic centre should belocated". The Council reached the point of agreeing the content of the consultation40 Local Government Act s 93B(3)(b)(3).document following presentations to Councillors at seminars held for the purpose ofdiscussing the LTP in January, February and April 2018.[149] Mr Jack's evidence was that at the seminar held on 31 January 2018, Councilofficers updated Councillors on changes to the Onekawa facility proposal, "based oninformation gathered through the Council directed designs, scheduling and costings todate". I have already set out the relevant slide from the power point demonstrationbut for convenience I do so again.Aquatics Expansion• 50 metre pool is not affordable• TBIG/RLB assessment of 50m option = $49m (incl $3m contingency & costescalations)• Issues with current site at Onekawa• Currently validating alternative greenfields site• Preferred option is QE II design 25x25 - bells and whistles at a lower cost• Options to include in Consultation Document:Option 1. $49m basic design 50m poolOption 2. $42m (QE II design/build) 25m x 25m poolOption 3. $19m expansion of current facility[150] In the final bullet point three options were proposed for inclusion in theconsultation document. Mr Jack described Option 2 as an amended "Option 2" fromthe September/October 2017 engagement that is, a new 25m x 25m pool but not atOnekawa and taking into account the further information received from TBIG inDecember 2017 and from the Christchurch City Council when it was approached forinformation in relation to the QE II. Dr Plested's recommendation was to explore theavailability of a site that avoided the risks and associated costs of managing the risks.Significantly, Council officers received no alternative direction from Councillors inresponse to the recommendation that the Prebensen Drive option be included as oneof the options for public consultation.[151] Every opportunity was available to Councillors to dig deeper, to request furtherinformation and in particular, to ask to see the TBIG information and RDP Master PlanBudget. No such request was made. That of course was the prerogative of individualCouncillors. The material point is that the adequacy of the information upon whichCouncillors made their decisions was not compromised by not having sighted the sixpages of documentation. The key points to be drawn from that information weredrawn, and presented.[152] I agree with the Society that it was incumbent on Council staff to ensureCouncillors themselves had the key information relied on in making their decision. Iam satisfied that Council officers discharged that responsibility. Dr Plested distilledand explained the technical information to the Council and in this respect, the Councilwas properly informed as a consequence of Dr Plested's distillation and explanationof the technical information presented in TBIG's risk register and cost loadedschedule. It is helpful also to view Dr Plested's advice and the Council's approach inlight of the letter from PDP's technical director and its concluding comments set outat [140] above. This independent expert was of the opinion that:(a) the full extent and degree of contamination at Onekawa is not known;and(b) a site free of contamination is easier and cheaper to develop than a sitewith contamination; and(c) additional time and greater costs would arise at the Onekawa site,relative to a "clean" site.[153] The key point is that although they are made after the fact, PDP's commentsmay be seen as validating the Council's approach. And the comments validate, a longtime after the event, the prudent approach taken by Dr Plested in December 2017 whenhe recommended to the Council that if an alternative site was available — one thatavoided the risk and associated costs of managing them — such an alternative siteshould be investigated before making a decision to proceed with Onekawa.[154] The Society has not made out this ground of review.Sixth ground of review: failure to identify all reasonably practicable optionsSociety's case[155] Under this head of review the Society claims the Council failed to identify andassess all reasonably achievable, practicable alternative options for the achievementof the Council's objective prior to making the impugned decision (to adopt the LTP).This asserted failure is said to be in breach of s 77(1) of the LGA.[156] The argument is that the consultation document presented only two options.Had communities been consulted prior to release of the consultation document, otheroptions would have been raised. Therefore, and as pleaded, the Council lackedadequate and comparable information to support an informed assessment of theoptions summarised in the consultation document.Council's position[157] The Council's position is that it properly identified and assessed all reasonablypracticable options. The consultation document contained a link to the business casewhich itself contained plans for other options.[158] The Council also draws attention to s 10 of the LGA which, in stating thepurpose of local government, includes the following:(a) to meet the current and future needs of communities for good-qualitylocal infrastructure, local public services, and performance ofregulatory functions in a way that is most cost-effective forhouseholds and businesses.Discussion[159] There is a degree of overlap with this head of review and the Society'sargument that before abandoning the 50m Onekawa option the Council should havetaken a prior step and tested, or gained (once more), the community's views on itspreferred options. As I have determined, the Council was under no duty to consultwith the Napier communities prior to release of the consultation document.[160] Section 77(1)(a) requires a local authority, in the course of its decision-making,to seek to identify all reasonably practicable options for the achievement of theobjective of its decision. In this case, prior to making the impugned decision, theCouncil:• engaged GLG to prepare a business case for pool facilities at the Onekawafacility;• in April 2017 received the business case for the Onekawa facility — optionsfor expansion;• received a seminar presentation of four re-development options and arecommendation to go to the community to consult;• in September 2017 consulted with the community on the Onekawa facilityre-development options;• in the week 11–15 December 2017 officers engaged in a desktop review ofalternative locations for the aquatic centre;• Councillors ultimately accepted official's advice not to include in theconsultation document the 50m pool option at Onekawa in light of theescalating costs.[161] There is no dispute that the Council did not re-consult with the communityprior to determining the two options for inclusion in the consultation document.[162] Mr Williams submitted that "the lack of stakeholder engagement" meant theCouncil failed to comply with s 77 of the Act in identifying all reasonably practicableoptions and assessing those options and instead, the public was presented with a two-page summary outline of two stark options, "only one of which resembled anythinglike that which had previously been put to either the broader public or the swimmingcommunities for feedback and comment ".[163] But it was for the Council, in its discretion under ss 77 and 79, to identify thereasonably practicable options to achieve the objective of its decision in relation to theaquatic centre. The gravamen of the Society's grievance seems to be that the Onekawafacility, which was the overwhelming favourite of the community, was not one of thoseoptions. The fact the Council had discounted that option on the grounds it was notfiscally credible or prudent did not, however, mean it failed to identify options.[164] And the evidence shows that options were identified in terms of s 77(1).Section 77 is subject to the broad discretion conferred by s 79. Section 79 requires alocal authority to have regard to the significance of all relevant matters, including theviews of the community and the extent of available resources.[165] I accept the Council's submission that it made an appropriate decision aboutthe options for inclusion in the consultation document. It was informed by communityviews about what an aquatic centre should provide and, as Mr McNamara submitted,"prudential political judgment about costs vs benefit and affordability, and technicaladvice about consenting and construction matters".[166] This ground of review is not established.Seventh ground of review: predetermination/fettering of discretionSociety's case[167] The Society's pleaded case is that:(a) The Council made the impugned decision on the basis of advice that itwas not open to Councillors to formally debate the subject matter of theimpugned decision immediately prior to adopting the 2018–2028 LTPor they would be in breach of their statutory obligations.(b) Councillors had earlier been advised they would be able to re-debatethe impugned decision following the hearing of submissions prior toadoption of the 2018–2028 LTP.(c) The extent of the Councillors' substantive discussion of the options waswrongly constrained as a result of this conflicting advice, as was theexercise of its discretion regarding those options.[168] Mr Williams submitted that even if any of the preceding grounds of review arenot made out, the prospect that the elected representatives of the ratepayers and publicof Napier felt constrained in the exercise of their deliberation on the proposed optionsmust raise a reviewable error. Mr Williams further submitted the Councillors wereeffectively acting under a form of dictation with reference to the advice received anddid not fully exercise their discretion. He submitted they were "backed into a corner"through a conflicting sequence of advice which may or may not have been correct.Mr Williams categorised this as a process error on a grand scale, one that fatally taintsthe decision.Council's position[169] The Council argues this cause of action is unsustainable particularly as"predetermination" is not even pleaded.[170] The Council denies all of the allegations and, as does the Society, points toevidence in support of its position.Discussion[171] The Society's claim that Councillors were constrained in their deliberationsand "were effectively acting under a form of dictation with reference to the advicereceived" requires a close examination of the evidence.[172] The advice the Society relies on was given in response to a query fromCouncillor Wise in relation to a process referred to as "double debate". On 29 May2018 Ms Wise sent the following email to Mr Jack:Just following up on the comments today regarding the LTP process, couldyou please clarify the following:1. As this is being held as an Extraordinary Meeting of Council there willbe no opportunity to double debate. This has not been the process in prioryears for the Annual Plan and sorry I can't recall what happened for thelast LTP 2015-2025. I tried to check the historical agenda however theseare not on the hub or council website.[173] In his affidavit evidence Mr Jack explained the concept of double debating.Apparently, the Napier City Council is one the few local authorities using a doubledebate system. A formal "double debate" of matters, in the sense in which the NapierCity Council uses the term, means that "a committee first considers the matter andmakes a recommendation to the Council, which then re-considers the matter andmakes resolution".[174] In response to Ms Wise's query, the following response was sent to allCouncillors on 30 May 2018. Mr Jack's evidence was that the response was based onadvice from Local Government New Zealand and was reviewed by the Council'slawyers.The hearings and deliberation process results in a recommendation orrecommendations, providing the direction for the preparation of the LongTerm Plan. This provides the first opportunity to debate the Long Term Plan.The recommendation(s) are then audited over the next two weeks (starting11 June 2018) (Local Government Act 2002, section 94). Council will thenhave one further opportunity to debate the Long Term Plan on 29 June 2018at which time the intention is for it to be formally adopted. This in effectprovides for "double debate".Council are required under legislation (Local Government Act 2002, section93(3),) to adopt its Long Term Plan by 30 June 2018. This adoption should beunderstood as a starting point for the projects and works contained within thePlan, and there are a number of ways these may be further considered oradjusted over the ensuing three years. For example, if further information orengagement with the public was considered important for a major project thiscould be undertaken; depending on the results of this, an amendment to theLTP could be made (Local Government Act 2002, s93(4) and s93(5)). A minorchange could be revisited during the 2019/20 Annual Plan process. Projectsalso have multiple built-in milestones, each of which forms an opportunity toreaffirm the decision to proceed or to reconsider.(Emphasis added)[175] Mr Jack stated that Ms Wise responded with thanks on 31 May 2018, notingthat "the process is now very clear".[176] Questions around double debate were raised over the following week. Mr Jackdeposed to records from the Council's legal advisers showing a file was opened on11 June 2018, culminating in written advice to the Chief Executive (Mr Jack) and adiscussion with elected members on 21 June 2018 during which the LTP process andoptions in relation to the adoption of the LTP were discussed.[177] Mr Jack's further evidence was that:Many other internal conversations were also held with elected members(including Councillor Wise) over this time, where they had the opportunity toask questions and talk through any concerns in advance of the extraordinaryCouncil meeting on 29 June 2018 to adopt the LTP.These discussions included comment on section 96 of the LGA in relation toa LTP – that is, that they are intentional documents, and that adoption does notconstitute a decision to act on any specific matter included within the Plan.[178] The Society does not dispute the correctness of the advice to Councillors on30 May. The Society's position was that "the advice may or may not have beencorrect" but the point was that Councillors, or at least a number of them, did notconsider they had a "free hand" and an "opportunity to properly address the mostsignificant decision ever confronted by the Council". Ms Wise's evidence was thatthere was a very clear understanding by all Councillors that there would be anopportunity to double debate.[179] In my view, the written advice to Councillors on 30 May 2018 does notreasonably lend itself to such an understanding.[180] The two opportunities for debate were spelled out clearly. An opportunity firstarose during the hearings and deliberations process that resulted in a recommendationfor the direction of the LTP. The second opportunity was to arise (in this case) at themeeting on 29 June 2018. The emphasised words are unambiguous. The 29 Junemeeting would be the "one further opportunity" to debate the LTP. Together, the twoopportunities "in effect provide[d] for double debate".[181] In my view, Councillors could not realistically infer from the advice that theywould have an opportunity to "double debate" beyond the two opportunities describedclearly in the advice.[182] Furthermore, the evidence does not support the Society's case that Councillorswere constrained, or backed into a corner, or did not fully exercise their discretion asa result of receiving the 30 May 2018 advice.(a) Available to each Councillor for the hearings and deliberations process,were the percentages of submitters in favour of each option or who hadno preference; additional comments from submitters and the fullwritten submissions from those who provided them.(b) On 6 June 2018, following hearings at which members of the publichad an opportunity to speak to their submissions, Councillorscommenced their deliberations at 10.00 am. Although a second daywas available to Councillors they concluded their deliberations on6 June at 5.30 pm when the meeting was declared closed. Mr Jack'sevidence was that there was no constraint on the time available toCouncillors to ask questions and discuss each matter during thedeliberation process. Each topic was worked through. There were notime constraints on discussions and although a further full day wasavailable, all chose not to take the extra time. Deliberations were opento the public and video recorded.(c) Based on a review of the video recording of the 6 June 2018deliberations, Mr Jack's evidence was that the video recording did notsupport Ms Wise's claim that "a number of Councillors had questionsabout the proposal which were not able to be asked and answered". Thevideo recording showed:(a) The Aquatic Centre development was deliberated for overan hour.(b) No specific questions in relation to the Aquatic Centrewere left unanswered. However, Caveats wereincorporated into the recommendations, at the request ofCouncillors Brosnan and Wise, in order to address theirquestions.(c) Before moving on to the next matter, a 'show of hands'was taken in relation to the motion (including the Caveats).Five Councillors did not support the motion, those being Councillor Wise voted in favour of the motion.Ms Wise confirmed she voted in favour of the motion but said it wason the understanding, based on the advice to Councillors on 30 May2018, there would be an opportunity to double debate and vote again.(d) The opportunity to debate and vote again was at the meeting on 29 June2018. Under the agenda item, "Adoption of Long Term Plan 2018–2028" the minutes record the Mayor's introduction of the item and thenthe following:Councillors discussed the LTP, highlighting the major projects,and noting the following points [first six points relating to other projects omitted]• It is important to adopt the LTP today to allow theseprojects to get underway.• Differing views were expressed by Councillors inrelation to the proposed aquatic centre, specificallyaround the new location and information provided toCouncillors.• Council has received information including seminarsetc. to overcome any areas of concern regarding theaquatic centre.• A number of Councillors expressed concerns butadvised they were prepared to support the adoption ofthe LTP, subject to the advice given to them bymanagement that gateways will be available to themalong the way, to seek further information and makechanges, where required.• One councillor expressed specific concerns aroundwhat this LTP signals to Napier's population,especially lower income earners.[Resolved]a. That Council adopt the Long Term Plan 2018 – 2028in accordance with the Local Government Act 2002,subject to minor changes from Audit New Zealand.b. That the submitters be advised of the Council'sresponses in relation to their submission.Councillor Tapine against[183] The Society relies on a transcript of the Extraordinary General Meeting on20 December 2018,41 at which Councillor Wise addressed the double debate issue inthe following way:Councillors were advised that they would have the opportunity to re-debatethe Long Term Plan decision when we formally adopted it at the end of themonth.Late June 2018 after voicing concerns about the Aquatic Centre decisionCouncillors were now presented with legal advice that they could not re-debate this decision or change their vote as this would require them to rejectthe entire long term plan and reconsult. In order to avoid holding up the entireLong Term Plan a number of Councillors voted to adopt it.[184] In her affidavit evidence Ms Wise confirmed the accuracy of the transcript anddeposed as follows:As recorded in the transcript Councillors did not having [sic] an opportunityto "re-debate" the subject of the Council's decision before it was made (as wehad earlier been told we could) as a result of advice received part way throughthe process.As a result of this advice, I can say as a fact that the Council decided to proceedwith its largest ever Project without the opportunity to properly discuss anddebate the issue, including the very significant concerns held by a number ofCouncillors regarding the proposal and issues raised by submitters. Forexample I recall that a number of Councillors had questions about the proposalwhich were not able to be asked and answered during the deliberations.[185] Notwithstanding the discussion at the meeting on 20 December 2018(six months after the impugned decision) the evidence in relation to Councillors'deliberations up to and including 29 June 2018, tends to disprove the Society's claimthat Councillors were wrongly constrained in the exercise of their discretion, whetheras a result of conflicting advice about double debating, or at all.[186] The advice to Councillors (reflected in the penultimate bullet point in theexcerpt from the 29 July 2018 minutes) reflects s 96 of the LGA. A resolution to adopta LTP does not constitute a decision to act on any matter included within the LTP. Alocal authority may make a decision that is inconsistent with the LTP subject to theobligation under s 80 to identify a significant inconsistency, the reasons for theinconsistency and any intention to amend the plan to accommodate the decision.41 Extraordinary General Meeting on 20 December 2018, above n 8.[187] In summary, Councillors had a full opportunity to debate the merits of thePrebensen Drive option both before recommending on 6 June 2018 to proceed withthat option and before adopting the LTP containing that option. The inclusion ofcaveats in the recommendation made on 6 June 2018 demonstrates active deliberationof the LTP and the minutes of Council's meeting on 29 June 2018 show that themeeting was a further occasion on which Councillors actively and without constraintdeliberated on the motion before adopting the LTP.42[188] Although some Councillors had a change of heart, as reflected in the agendafor the Extraordinary Meeting on 20 December 2018, that cannot, and does not, alterthe character of the discussion and decision on 29 June 2018.[189] This ground of review is not established.Eighth ground: review of tender decisionSociety's case[190] At the heart of this challenge is the third of the four caveats subject to whichthe Council resolved to adopt the LTP including the Prebensen Drive option for theaquatic centre development.[191] The third caveat bound the Council to agree the scope of tender beforeproceeding with the aquatic centre development. On 16 April 2019, the Councildecided to approve the scope of tender as envisaged by the third caveat. The scope oftender was approved with the acting Mayor's "deliberative and casting vote".42 The open attachments (comprising approximately 300 pages) for the meeting on 29 June 2018,contain a description of decisions and changes following the hearing of submissions between 1 and6 June 2018. In relation to the Napier Aquatic Centre Development the following is recorded:"Council to proceed with the proposed 25m x 25m Pools and Play option in the new location and retain theallocated $41.3 million for this project in the LTP, subject to the following caveats.> Post-move development and funding plan put in place for Onekawa> Outdoor space built-in to the new complex> Scope of Tender agreed by Council before it goes out> The site investigations for the new location being completed."[192] The Society's case is that, in the circumstances pleaded in relation to theseventh ground of review, it was unreasonable for the acting Mayor to apply a castingvote to approve the scope of tender.[193] Mr Williams submitted that, given the background circumstances, it was"manifestly unreasonable" for the Council to have relied on the casting vote of theacting Mayor to release the final caveat in the sequence, particularly given thepresumption in cl 24(2) of sch 7 to the LGA "that where there is an equality of votes,the decision is defeated".Council's position[194] I summarise the main points advanced by Mr McNamara:(a) The first point, made in reliance on Wellington City Council vWoolworths New Zealand Ltd (No 2), was that a decision could not beinvalidated as unreasonable unless it was so perverse or absurd orotherwise flawed in terms of the Court of Appeal's characterisation ofunreasonableness.43(b) The possibility of a casting vote is expressly provided for in legislationand in the Council's standing orders and there is no legal basis for theSociety's claim that the power may be reasonably exercised in somecases but not in others.Discussion[195] Schedule 7 of the LGA contains provisions relating to local authorities andtheir members. Clause 24 provides:24 Voting(1) The acts of a local authority must be done, and the questions beforethe local authority must be decided, at a meeting by—(a) vote; and43 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA).(b) the majority of members that are present and voting.(2) For the purposes of subsection (1), the mayor or chairperson or otherperson presiding at the meeting—(a) has a deliberative vote; and(b) in the case of an equality of votes, does not have a casting vote(and therefore the act or question is defeated and the status quois preserved).(3) An act or question coming before the local authority must be done ordecided by open voting.(4) Subsections (1) and (2) apply unless—(a) this Act provides otherwise; or(b) the standing orders of the local authority expressly provideotherwise.[196] As is apparent, the combined effect of subcls (2)(b) and (4) is that a mayor orother person presiding does not have a casting vote unless the standing orders of thelocal authority expressly provide otherwise.[197] I was not taken to the Council's standing orders. However, the Societyconcedes that cl 18.3 of the Council's standing orders "confer the power" to approvethe tender by way of a casting vote. The Society's position is that the decision to usea casting vote is discretionary and, as with all discretions, must be exercisedreasonably.[198] The Society has not pointed to any statutory limitation on the manner, orcircumstances, in which a casting vote may be applied. Nor has it pointed to anyinherent limitation in the standing orders themselves.[199] In my view, this ground of challenge is supported by neither the facts nor thelaw. Mr McNamara characterised the decision to apply a casting vote "as a matter ofjudgment for a democratically elected member holding the office of acting Mayor".In my view that characterisation of the decision to apply a casting vote captures thedemocratic accountability of the office holder who so acts. There is no basis forinvalidating the decision short of the Society demonstrating that the casting vote wasindeed unreasonable in the sense that it was "so 'perverse', 'absurd' or 'outrageous inits defiance of logic' that Parliament could not have contemplated such [a] decisionbeing made by an elected council".44[200] In this case, as in Love v Porirua City Council "the Chairman on the occasionhad a duty to ensure that a decision upon the application then before the Council wasgiven one way or another. In the event of an equality of votes there would have beenno such decision At best the matter would have been left in the air with a clear needfor the Council to go back in order to resolve it."45[201] There was no evidence of bias or predetermination on the part of the actingMayor. And I have found, under the seventh ground of review, that the Society hasnot made out its claims that Councillors were constrained in their ability to deliberatefreely.[202] The Society has not established the casting vote was unreasonable nor that theCouncil's decision to approve the scope of the tender was invalid.Ninth ground of review: wrongful reliance on significance and engagement policySociety's case[203] Under this head of review the Society seeks to have the impugned decisiondeclared invalid on the grounds that:(a) the Council introduced an amendment to its significance andengagement policy without consulting on the amendment; and(b) in making the impugned decision the Council wrongly relied on theamendment it had made to its policy.[204] In essence the Society's concern is that, relying on an exception to the need toengage, the Council promoted the Prebensen Drive option for aquatic centre44 Wellington City Council v Woolworths New Zealand Ltd (No 2) at 552.45 Love v Porirua City Council [1984] 2 NZLR 308 (CA) at 313.development through the LTP when it should have engaged the community on theproposal through its significance and engagement policy.Council's position[205] The Council accepts it amended its significance and engagement policywithout engaging the community on the amendment. But its position is thatconsultation on the amendment was not required given the nature of the amendment.The Council also says it was clear throughout 2017 and 2018 that engagement withthe community in relation to the final options for the Napier aquatic centre would bevia the consultation document.Discussion[206] As required by s 76AA (set out above at [55]) the Council had a significanceand engagement policy. The policy, approved on 1 November 2014, stated:This policy will be reviewed at least once every three years, when it willinvolve community engagement. It may also be amended from time to time.[207] A review of the policy was initiated in October 2017. A significance andengagement policy is to set out the local authority's general approach to determiningthe significance of proposals and decisions.46 At a presentation to Councillors on15 November 2017 the question of when the Council would engage was canvassed.The presentation slides suggested factors warranting the Council's engagement withthe community:When we engageDegree of Significance• Impact (financial, levels of service, community)• Changes to a Strategic Asset• Community interest• Permanency• Legal requirementWhen we may not engage• Time constraints• Low degree of significance46 Local Government Act 2002, s 76AA(1)(a).• Business as usual (operational)• Community view known• Defer to Long Term Plan[208] The significance and engagement policy was considered by the Council'sFinance Committee at its meeting on 6 December 2017. The Committee resolved toapprove a revised policy which "provided greater clarity, includes tools and guidanceto determine significance and levels of engagement, and aligns with international bestpractice".[209] The new policy was adopted by Council on 20 December 2017. Several newsections were added to the policy including the following:When Council may not engageThere may be situations when engagement is impractical or unnecessarybecause:• of time constraints e.g. failure to make a decision urgently wouldresult in unreasonable or significant damage to property, or risk topeople's health and safety, or the loss of a substantial opportunity toachieve the Council's strategic objectives• the matter is not significant and/or is regarded as business as usual• the Council considers that the views of the community are alreadyknown• the timing of the decision means it would be better dealt withthrough the Long Term Plan[210] The Society says the exception from engagement which the Council has carvedout on the grounds that engagement may be impracticable or unnecessary was notconsulted upon and was therefore unlawfully included in the policy.[211] The Society submits that even if the amendment was validly made:(a) relying on this exception was demonstrably at odds with the schemeand requirements of pt 6 of the LGA;(b) as a matter of principle, the exception should not be interpreted to allowan outcome which effectively defeats the intent of the parentlegislation, (and the significance and engagement policy itself); and(c) the assumption inherent in the Council's reliance on the exceptionreveals the same error this same Council made in Gwynn v Napier CityCouncil.47[212] In that case, Dr Gwynn challenged the adequacy of the process adopted by theCouncil in considering whether it would promulgate a policy exempting traders fromthe default position under the Shop Trading Act 1990 which, broadly, prohibitsEaster Sunday trading. The Council understood that the process under the specialconsultative procedure, which it had followed, meant it was unnecessary to complywith features of other consultation processes provided for in ss 78 and 82. The Judgewas satisfied the principles of consultation specified in s 82 of the LGA applied whena local authority undertakes consultation pursuant to the special consultativeprocedure. Therefore, the Council had breached the statutory consultation obligationson it. There were other grounds of review but none involved any kind of challenge inrelation to the significance and engagement policy. In fact, the Council's significanceand engagement policy is not mentioned in the judgment.[213] The issue in this case is whether the Council should have consulted on itsamendment and even if it was not required to consult on the amendment, whether itwas wrong of the Council to consult on the aquatic centre development through theLTP process rather than under its significance and engagement policy.[214] Section 76AA(4) expressly permits a local authority to amend its significanceand engagement policy from time to time. The local authority must consult on theamendment in accordance with s 82 unless48 it considers on reasonable grounds that it has sufficient information aboutcommunity interests and preferences to enable the purpose of the policy to beachieved.[215] The question then is whether the Council had reasonable grounds forconsidering it had sufficient information about community interests and preferencesto enable the policy to be amended in the way it was, without consultation.47 Gwynn v Napier City Council [2018] NZHC 1943, [2018] NZAR 1410.48 Local Government Act 2002, s 74AA(5).[216] For the following reasons I do not consider the Council was required to consulton the amendment.[217] Mr McNamara drew attention to the 2014 Local Government Act AmendmentAct, one of the effects of which was to replace the "significance policies" under thenow repealed s 90 with significance and engagement policies.49 The Bill aimed to"remove unnecessary consultation".50 The significance and engagement policiesreplaced their predecessor "significance policies" as part of the suite of amendmentsin 2014 to reduce "the number of occasions when the costly and time-consumingspecial consultative procedure has to be used".51[218] The Council's 2014 significance and engagement policy described its generalapproach to engagement in this way:[e]ngagement is a term used to describe the process of seeking informationfrom the community to inform and assist decision-making. There is aspectrum of community involvement, and NCC follows these generalprinciples [219] Under "Criteria for Engagement" the 2014 policy stated that the Council:considers the significance of a decision to be made and uses a table ofcriteria (Engagement Spectrum) to assess the approach we might take toengage the community.Decisions will be "informed" as a minimum standard. Decisions of highsignificance will be at the very least informed to wider communities, and willuse engagement tools and techniques beyond "inform" for affectedcommunities. The level of engagement will be agreed on a case-by-case basis. A low levelof engagement does not mean that engagement is diminished, inappropriate ornecessarily that a decision is of lesser significance. Time and money may limitwhat is possible on some occasions.[220] I have compared the 2014 policy with the 2017 policy. The policy statementis unchanged from the 2014 statement. The amendments made to the "Criteria forSignificance" are not substantive. And the addition of the statement identifying the49 Local Government Act 2002 Amendment Act, s 29.50 Local Government Act 2002 Amendment Bill 142–1, Explanatory Note.51 (3 December 2013), 695 NZPD 15149, per the Hon Morris Williamson.situations when Council might not engage could not reasonably be expected to be thesubject of consultation. Whereas the 2014 policy stated that "in every issue requiringa decision the Council will consider the degree of significance and the mostappropriate level of engagement" the amendment went further and clarified for thecommunity the circumstances when engagement might be impractical or unnecessary:because of time constraints; because the matter is not significant or is regarded asbusiness as usual; when the Council already knows the views of the community; orbecause the timing of the decision means it would be better dealt with through the LTP.[221] Conceivably, of course, the community might challenge the Council's relianceon one of these exceptions to engagement, as the Society does in this case. But thatdoes not mean it was necessary to consult on an amendment that serves only to clarifythe circumstances in which communities might not be engaged.[222] The Society's case is that the Council promoted the Prebensen Drive optionthrough the LTP in reliance on the exception to the need to engage stated in thesignificance and engagement policy. That is simply not correct. The Council decidedprior to the amendment that engagement on the Napier aquatic centre would bethrough the LTP process. The minutes of the Council meeting on 8 November 2017record the Council's resolution to "support the development of designs, schedule andcostings for Option 352 to be considered during the 2018–28 LTP process. On6 December 2017, many weeks after the Council resolved to consult through the LTPprocess, the Council approved the amended significance and engagement policy. Inother words, regardless of the amendment to the policy, the Council had decided touse the LTP process as the opportunity to consult once the detailed work on design,scheduling and costings had been completed.[223] The evidence does not support the inference the Society seems to draw that theaquatic centre development decision-making process motivated the changes to thepolicy. I accept Mr Jack's evidence:The amendment was not, as Mr W suggests, an "exception" to some kindof default position that consultation would be undertaken for all decisions.52 At that stage Option 3 was the Council's preferred option, namely the new build 50m option atOnekawa.Nor was the change to the Policy motivated or influenced by the Council'sconsultation and engagement on the NAC.[224] This ground of review is not established.Result[225] For the foregoing reasons, the application for review is dismissed.[226] As the successful party the Council is entitled to costs. The parties may submitmemoranda not exceeding 12 pages if they are unable to agree costs. Anymemorandum on behalf of the Council should be filed and served within 20 workingdays from the date of this judgment. Any memorandum in response is to be filed andserved within 10 working days following._____________________________Karen Clark JSolicitors:Langley Twigg, Napier for ApplicantSimpson Grierson, Wellington for RespondentGlossary of termsAbbreviation Definition and paragraph where first definedBusiness Case The report completed in June 2017 by GLG: [6]Consultation document The document approved by the Council for public consultationon the 2018–28 long term plan: [26]GLG Global Leisure Group, which the Council engaged to develop abusiness case in relation to replacing pool facilities at NAC: [5]Impugned decision The decision at the heart of the judicial review claim anddescribed in the statement of claim as Napier City Council'sresolution on 29 June 2018 to adopt the 2018–2-28 LTPIvan Wilson Complex The 25m lane pools and extras within the NAC: [4](a)LGA Local Government Act 2002LTP Long term plan: [11]NAC or Onekawa facility Napier Aquatic Centre at Onekawa: [1]New build option or 50m newbuild option A new build complex to replace all NAC facilities at Onekawa:[8]PDP Pattle Delamore Partners Ltd who prepared a report in 2009 thatwas referred to in the RFP: [14]RFPThe request for proposal that the Council released seeking aconsultant to assist with the tasks associated with the design andconstruction of a new build scenario at Onekawa: [13]RLB Rider Levett Bucknall who prepared a master plan budgetprovided to Councillors prior to their making the challengeddecision: [21]SEP The Significance and Engagement Policy prepared pursuant tos 76AA of the Local Government Act 2002: [38]TBIG The building intelligence group instructed to price a new 50mpool at Onekawa: [15]TBIG information The schedules containing the information the Council soughtfrom TBIG: [16]