Friends of Onekawa Aquatic Centre Society Incorporated v Napier City Council
[2020] NZHC 850
•30 April 2020
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2019-441-26
[2020] NZHC 850
BETWEEN THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED
ApplicantAND
NAPIER CITY COUNCIL
Respondent
Hearing: 30 September and 1-2 October 2019 Appearances:
M J E Williams for Applicant
P M S McNamara and O L Rego for Respondent
Judgment:
30 April 2020
JUDGMENT OF CLARK J
Table of Contents
Introduction [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]
THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITY COUNCIL [2020] NZHC 850 [30 April 2020]
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 reasonably
practicable 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 engagement
policy [203] Society’s case [203] Council’s position [205] Discussion [206] Result [225] Glossary
Introduction
[1] The applicant challenges numerous aspects of the process by which the Napier City Council reached a decision to close the Napier Aquatic Centre at Onekawa (Onekawa facility) and build a new pool complex on Prebensen Drive.1
Background facts
[2] Owned and operated by the Napier City Council, the Onekawa facility is the main community pool in Napier. It serves what the applicant describes as a “lower socioeconomic opportunity” reliant on walking access to the Onekawa facility to learn to swim.
[3] The Napier communities had become dissatisfied with what they perceived as the inadequacy of the aquatic facilities available to them. In mid-2014, the Council engaged consultants for the purpose of producing a Napier aquatics strategy. The strategy was to set the direction for the provision of aquatic space to meet Napier City’s needs for the next 30 years. The strategy was developed following engagement with national and regional stakeholders (sports and lifesaving clubs, schools and other educational 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 meaning significant investment in aquatic facilities needed to focus on changing, rather than increased, demand for facilities. An increasingly aging population was an obvious contributor 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 the Onekawa facility were not compliant with the requirements for national aquatic 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 the provision of aquatic sports such as aqua jogging, water polo and diving.
(c)The children’s pool was restricted for play purposes because it was the only pool of suitable size and depth able to be used as a teaching pool for 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 at the Napier Aquatic Centre to meet current and future community needs”.
[6] In June 2017 GLG completed its report: Napier Aquatics Centre Business Case: Option for Expansion (Business Case). GLG had surveyed all aquatic clubs and met with representatives of a number of the clubs. The business case reported on feedback from Sport Hawkes Bay, the Onekawa facility management and programme staff, and the Hawkes Bay DHB. Other community feedback was sought and summarised in the business case.
[7] GLG undertook an analysis of four options. While GLG assessed all options as meeting the identified needs it recommended public consultation on only two of the options:
(a)the extension and expansion of the existing Ivan Wilson Pool complex. This option (GLG option 2) involved retaining the existing Ivan Wilson 6 lane, 25m x 12m pool, learner pool, hydro slides and spa pools and building new facilities including a new 25m x 25m pool and a new learn to swim pool.
(b)replacing all the current facilities on site and developing a new pool complex incorporating a new 10 lane 25m x 25m pool, a new programme 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 replace all Onekawa facilities. The new build would include a 50m pool. This is referred to
throughout as the “new build option”, or the “50m new build option”. Because it would not provide the same flexibility to meet current and future community demand compared to option (b) above, GLG discounted it and recommended against consulting on that option.
Council engages the community
[9] At its meeting on 16 August 2017 the Council approved the Business Case options for expansion and resolved to progress community engagement and consultation on the following three options, all of which involved some kind of extension or re-development of the existing Onekawa facility:
(a)Option 1: the extension and expansion of the existing Ivan Wilson complex (build cost $19.5m);2
(b)Option 2: the replacement of current facilities which would include a new 25m x 25m pool (build cost $37m);3
(c)Option 3: a new complex comprising three new pools, a café and water play 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 a new 50m pool, it was included in the options on which the community’s views were sought.
Council scopes a new 50m build option
[11] The overwhelming community preference (84 per cent of 1,695 responses) was for the 50m new build option. In November 2017 the Council resolved to support the development of designs, schedule and costings for this option to be considered during the 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 the project during the LTP process, the Council’s Chief Executive Wayne Jack, asked Dr Plested, the Council’s Manager Design and Projects, to engage specialist assistance with the project management of the aquatic centre project.
[13] A closed contest request for proposal (RFP) was released seeking a consultant to develop a breakdown of the tasks needed to accomplish the planning, consultation, design, contracting and construction of the then proposed aquatic centre at Onekawa based on the “50m new build” scenario presented by the Council as Option 3 during its community consultation phase. The scope of services sought in the RFP included:
(a)development of a list and schedule of tasks required to move the Council from its concept development stage to project completion and handover;
(b)provision of estimated costs for each task along with rationales; and
(c)provision of a list of risks to successful project completion, with corresponding tasks and mitigation actions.
[14] The RFP recorded specific risks identified by the Council including geotechnical issues relating to the fact the Onekawa site was a former landfill. This was a high-risk matter because if the foundations could not be engineered to account for the ground conditions the project would “not pass go”. A further high-risk matter was that, being landfill and therefore a hazardous site, there were requirements under the Resource Management Act 1991 to undertake testing, reporting and remediation (or management) as part of the development and earthworks. Until an investigation was undertaken of the nature of contamination and a solution determined, the cost of development would not be known. The RFP noted that a report prepared by Pattle Delamore Partners Ltd (PDP) was available. That report, prepared in 2009, included an illustration of the location of the landfill activities. In all, the RFP identified some 11 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 to price it as a greenfield construction5 but due to the location of landfill debris a greenfield approach was not possible and pricing for handling landfill debris had to be included in the cost estimate.
[16] The information sought from TBIG was received on 8 December 2017. TBIG submitted a cost loaded schedule providing a timeframe for project phases and the estimated cost of the project. The data contained in the three pages of schedules was in 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 of direction by the Council. TBIG estimated a project cost of approximately $49.1m including an allowance of $3.5m for contingencies and $3.5m for cost escalation through to 2021. This was $10m to $11m greater than the cost of the 50m pool option assessed during the community engagement and consultation phase.
[18] TBIG identified 44 risks potentially affecting the success of the project as it progressed through the planning, design and construction phases. Where the risks had a cost impact on the project, the costs were identified. For example, the additional costs associated with disposing of contaminated landfill debris in order to form a sound foundation 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 to Council that if another site without the risks and associated costs of managing them was available, that should be investigated before making a decision to proceed with the 50m new build at Onekawa. Dr Plested’s analysis and concerns are covered in greater 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 the aquatic centre development and Prebensen Drive was selected as the “preferred site”.
[21] The TBIG schedules and risk register themselves were not provided to Councillors prior to making the impugned decision but key information from them and from a “Masterplan Budget” prepared by Rider Levett Bucknall (RLB) was given to Councillors before they decided to adopt the LTP. For example, at a 2018–2028 LTP Council seminar on 31 January 2018, a power point presentation included the following information:
Aquatics Expansion
• 50 metre pool is not affordable
• TBIG/RLB assessment of 50m option = $49m (incl $3m contingency & cost escalations)
• 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 pool
Option 2. $42m (QE II design/build) 25m x 25m pool Option 3. $19m expansion of current facility
[22] Councillors were given a further presentation of the same information on 14 February 2018.
[23] At a seminar on 13 March 2018, a draft consultation document was presented to Councillors for their review and discussion. The draft identified three options for aquatic facilities in Napier: a new pool complex at Prebensen Drive; a more expensive complex at Prebensen Drive that included a 50m pool; and an extension of the existing facilities at Onekawa.
[24] The agenda for an Extraordinary Meeting of the Council on 16 March 2018 contained the following:
That council receive the pre consultation feedback on the Aquatic options and consult fully as part of the Long Term Plan, recognising that costs were higher than anticipated on a more detailed review of the 50m pool option. A further review 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 pool option. The Council was reaching the stage where it had to finalise the content of the 2018 consultation document for Audit New Zealand signoff. As there continued to be discussion amongst some Councillors about the 50m new build option, notwithstanding the support shown at the seminars on 31 January and 14 February 2018 to bring forward option 2 (development of a 25 x 25 metre pool at Prebensen Drive) into the LTP consultation process, Mr Jack sought the views of Councillors on the 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 2018–28 Long Term Plan for public consultation. (Consultation document)
[27] The Council also adopted specific supporting information for the consultation document.
[28] The consultation document summarises the reasons why the Council decided to take a “fresh look” at the location of the aquatic centre. The consultation document states:
A 50-metre pool for training and competitions was supported by swimming clubs in particular. We looked into this option further, but with continual increases 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 rates per household.
Since last year, there is also a proposed 50-metre swimming pool facility at the Hastings Regional Sports Park that aims to cater to the demand for swim training and competition sports. A 50-metre pool in Napier would duplicate the development in Hastings.
Historical issues with the Onekawa site and its previous use as a refuse facility must also be considered.
Bearing all of this in mind, we have taken a fresh look at where the Aquatic Centre should be located. There is a centrally located, Council-owned site on the Prebensen and Tamatea Drive corner that could accommodate a new development, while still allowing for increased water spaces in the future.
This site would provide convenient access for more people in the city and across Hawke’s Bay. Should this option be supported, we will need to assess the 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 water space proposed meets the needs of a high proportion of users while also meeting the requirements of competitive swimmers and would complement the proposed 50-metre pool in Hastings. The design would be based on the QE II complex currently being built in Christchurch in order to reduce construction risks and design costs.
Should the development of the new site go ahead, we would keep the current Onekawa pool running until the new complex was ready. Prior to the pool’s eventual closure, we would look into the options for the future of Onekawa Park.
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:
Option
Total water space
Cost to build
Total cost to operate
Increases to rates per year
25m x 25m Pools and Play
1274m2
Excludes
zero depth
$41.3 m
$3.3 m
$67
Pool
extension
1127m2
$20.2 m
$2.8 m
$51
[30] The consultation document expanded on the two options in the table in the following way.
THE PROPOSED OPTION:
25m x 25m Pools and Play (new location) - $41.3 million capital ($34 million loans, $7.3 million reserves) /$3.3 million total operation per year (rates and user pays) – 2.75% total rate increase, $67 average rates increase per household
This new pool complex would be at the Prebensen location and would include three new pools (a 25m x 25m pool, a 25m x 12m learners’ pool and a 20m x 8m programme pool), two spa pools, a gymnasium, a café and a water play area featuring an accessible pool, bomb pool, hydroslide, splash pad and water toys, meeting the needs of a high proportion of users. This complex would cater for the high interest in leisure play as well as providing more lane space
and would be modelled on the QEII complex currently being constructed in Christchurch.
There is the opportunity with this option to extend the 25m pool to a 50m pool if 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 user pays) – 2.55% total rate increase, $51 average rates increase per household
This is an extension to the existing facilities in Onekawa with a new 25m x 25m 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 need refurbishment).
[31] A further presentation was given to Councillors on 24 April 2018. The 43-page document entitled “Napier Aquatic Centre Re-development Proposal 24 April 2018”:
(a)reviewed ‘the journey’, from the 2015 Napier Aquatic Strategy to development of the LTP options;6
(b)restated the Council’s objectives (which included meeting Napier’s aquatic 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 2018 covered similar material.
6Namely, the “proposed” new 25m x 25m pool on Prebensen Drive and the “other” being expansion of 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 evenly divided between the two options. Thirty nine percent (314 submissions) preferred the proposed 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 pool was also evident with the majority wanting it to be located at Onekawa. Of course, a 50m pool — at any location — was not included as an option in the consultation document.
[35] Councillor Wise raised in an email on 29 May 2018 a query in relation to a process referred to as “double debate”. The advice Councillors were given in response is 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’s decision of 29 June 2018 that the Society challenges in its application for judicial review, and which it seeks to have declared invalid. The Council resolved:
(a)That Council adopt the long-term plan 2018-2028 in accordance with the Local Government Act 2002, subject to minor changes from Audit New Zealand.
(b)That the submitters be advised of the Council’s responses in relation to their submission.
[The impugned decision.]
[37] Ms Wise deposed to having no opportunity to properly discuss and debate the aquatic centre re-development proposal because of concerns about the implications of deferring 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 and engagement policy. The significance and engagement policy is prepared pursuant to s 76AA of the LGA which requires Councils to adopt such a policy. The Council’s 2014 policy stated it would be reviewed every three years. The Council commenced its review in October 2017. In December 2017 the Council amended its 2014 policy.
[39] The applicant protests the Council’s amendment of its significance and engagement policy without consultation. It will therefore be necessary to return to the policy under the relevant ground of review.
Overview of the application for judicial review
Applicant’s position
[40] It bears repeating that the decision at the heart of the applicant’s challenge is the 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’s statutory obligations in relation to consultation and engagement with the ultimate users of the aquatic centre namely, the ratepayers and communities who will pay for and use the facility.
[42] The statement of claim pleads nine grounds of review although Mr Williams submitted the essential argument is that a prior engagement step was required before the Council could legitimately include the Prebensen Drive option in the LTP and exclude 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 ancillary
7 The impugned decision is set out above at [36].
decisions including the Council’s approval in April 2019 of a scope of tender; and
(c)an order that the Council reconsider the impugned decision in the manner proposed under a notice of motion addressed by the Council at an Extraordinary Meeting on 20 December 2018.8
Respondent’s position
[44] The Council acknowledges it did not formally consult with the community before deciding not to include the option of a 50m pool at Onekawa in the 2018–2028 LTP consultation document, but the further information that had become available to it meant the 50m new build option at Onekawa was no longer a reasonably practicable and financially prudent possibility for the Council to pursue. That was especially so in light of a proposal by the Hawkes Bay Community Health and Sports Centre Trust to develop a high-performance sports facility, including a 50m swimming pool.
[45] The Council says it complied with the statutory obligations imposed by the Local Government Act 2002 (LGA). In particular it encouraged those interested in the re-development of the aquatic centre to present their views to the Council and it gave 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 is necessary to set out the statutory framework in some detail. This part identifies provisions having particular application to the proceeding and summarises the statutory obligations that attended the Council’s decision on 29 June 2019 to adopt the 2018–2028 LTP.
[47]The purpose of the LGA is set out in s 3:
8The Extraordinary Meeting held on 20 December 2018 post-dated the impugned decision and the processes 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 extraordinary Council meeting to address a notice of motion that, essentially, would put a reassessed aquatic option back out for further community consultation. The Council rejected the notice of motion by a majority of one.
3 Purpose
The purpose of this Act is to provide for democratic and effective local government 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 to decide which activities they undertake and the manner in which they will undertake them; and
(c)promotes the accountability of local authorities to their communities; and
(d)provides for local authorities to play a broad role in meeting the current and future needs of their communities for good- quality local infrastructure, local public services, and performance of regulatory function.
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, and on behalf of, communities; and
(b)to promote the social, economic, environmental, and cultural wellbeing 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 purpose of local government stated in section 10; and
(b)perform the duties, and exercise the rights, conferred on it by or under this Act and any other enactment.
[50] Section 12 confers on a local authority full capacity to carry on or undertake any activity or business for the purpose of performing its role.
[51] While the LGA gives to local authorities greater flexibility and discretion in their activities than the predecessor 1974 legislation, that enhanced flexibility and discretion is balanced by requirements to ensure openness in their decision-making processes. The Court of Appeal observed in Whakatane District Council v Bay of Plenty Regional Council that the wide powers conferred on local authorities “are
subject to elaborate conditions”.9 It must be noted, however, that the Court of Appeal’s observation was made less in the round than in the context of the highly prescriptive s 78(2) with its four-stage process for obtaining community views in relation to decision-making. Section 78(2) was repealed by s 9 of the Local Government Act 2002 Amendment Act (2010). The relevance of its repeal is discussed below at [89].
[52] Nevertheless, and as the Court of Appeal observed in Whakatane District Council, the broad capacity given to local authorities is limited by other provisions which 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 other enactment, and the general law”.
(b)When performing its role a local authority is required by s 14 to act in accordance with the principles set out in s 14(1)(a)–(h):
(a)a local authority should—
(i) conduct its business in an open, transparent, and democratically accountable manner; and
(ii) give effect to its identified priorities and desired outcomes in and efficient and effective manner:
(b)a local authority should make itself aware of, and should have regard to, the views of all of its communities; and
(c)when making a decision, a local authority should take account of—
(i)the diversity of the community, and the community’s interests, within its district or region; and
(ii)the interests of future as well as current communities; and
(iii)the likely impact of any decision on each aspect of well-being referred to in section 10:
9Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 (CA) at [20].
10 At [5].
(d)a local authority should provide opportunities for Māori to contribute 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 the effectiveness and efficiency with which it achieves its identified priorities and desired outcomes; and
(f)a local authority should undertake any commercial transactions in accordance with sound business practices; and
(fa) a local authority should periodically—
(i)assess the expected returns to the authority from investing in, or undertaking, a commercial activity; and
(ii)satisfy itself that the expected returns are likely to outweigh the risks inherent in the investment or activity; and
(g)a local authority should ensure prudent stewardship and the efficient and effective use of its resources in the interests of its district or region, including by planning effectively for the future management of its assets; and
(h)in taking a sustainable development approach, a local authority should take into account—
(i)the social, economic, and cultural well-being of people and communities; and
(ii)the need to maintain and enhance the quality of the environment; and
(iii)the reasonably foreseeable needs of future generations.
(c)The LGA emphasises community consultation. Together, pt 6 and sch 10 provide a framework for consultation, planning, decision-making and reporting. The focus is to make local authorities accountable to their communities through open decision-making processes.11
[53] Part 6 (relevantly) sets out the obligations of local authorities in relation to making decisions and consulting interested and affected persons. Local authorities must 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’s accountability to the community.12 Part 6 prescribes the processes and general content of the LTP and sch 10 contains a more detailed prescription.
[54] Section 76AA was inserted in 2014.13 Section 76AA replaced s 90. Where s 90 required a local authority to adopt a policy setting out its general approach to determining the significance of proposals and decisions in relation to issues, assets and other matters, s 76AA contains—
(a)a detailed statement of the purpose of a “significance and engagement policy”;
(b)greater prescription around the content of an SEP; and
(c)procedural requirements relating to a local authority’s adoption or amendment 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 the significance 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 local authority in assessing the extent to which issues, proposals, assets, decisions, or activities are significant or may have significant consequences; and
(c)how the local authority will respond to community preferences about engagement on decisions relating to specific issues, assets, or other matters, including the form of consultation that may be desirable; and
(d)how the local authority will engage with communities on other 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 identify the degree of significance attached to particular issues, proposals, assets, decisions, and activities; and
(b)to provide clarity about how and when communities can expect 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 expected before a particular decision is made; and
(ii)the form or type of engagement required.
(3)The policy adopted under subsection (1) must list the assets considered by the local authority to be strategic assets.
(4)A policy adopted under subsection (1) may be amended from time to time.
(5)When adopting or amending a policy under this section, the local authority must consult in accordance with section 82 unless it considers on reasonable grounds that it has sufficient information about community interests and preferences to enable the purpose of the policy to be achieved.
(6)To avoid doubt, section 80 applies when a local authority deviates from this policy.
[56]Section 76 provides:
76Decision-making
(1)Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable.
(2)Subsection (1) is subject, in relation to compliance with sections 77 and 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 the decision is made, that subsection (1) has been appropriately observed.
(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 of a local authority, including a decision not to take any action.
(5)Where a local authority is authorised or required to make a decision in the exercise of any power, authority, or jurisdiction given to it by this Act or any other enactment or by any bylaws, the provisions of subsections (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 to the making of the decision.
(6)This section and the sections applied by this section do not limit any duty or obligation imposed on a local authority by any other enactment.
[57]Section 77 provides:
77Requirements in relation to decisions
(1)A local authority must, in the course of the decision-making process,—
(a)seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b)assess the options in terms of their advantages and disadvantages; and
(c)if any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions 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:
78Community views in relation to decisions
(1)A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.
…
First ground of review: breach of statutory consultation obligations
Society’s case
[59] The Society pleads that in making its decision to adopt the 2018-2028 LTP the Council failed to comply with the mandatory statutory obligations of the LGA including 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 under the Council’s significance and engagement policy.14
[60] The Society pleads that in light of the significance of the decision the Council had a duty:15
(a)to undertake “general informal and targeted consultation” with the wider community and specific stakeholders prior to release of the consultation document; and
(b)not to confine disclosure of the Prebensen Drive option to the consultation document.
[61] The Society’s claim that a pre-engagement step was required is underpinned by the following contentions:
(a)The Council failed to encourage those affected by its decision to present to the Council “in the collaborative manner” envisaged by the Council’s significance and engagement policy, their views on the “proposed option” in the consultation document.
(b)There was a systematic failure to provide interested and affected communities with access to clear and relevant information at critical stages of the process to enable their effective participation and to enable the Council to give proper consideration to their views and preferences as 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 and test, they could not express informed views and were participating in the dark. In this sense the natural justice element of the LGA’s requirements broke down.
(d)The procedural failures comprised a breach of ss 76, 77, 78 and 92 of the LGA. Additionally, the breach of the mandatory disclosure requirements infringed ss 93C and 93G.
(e)In short, the Napier community had been led by the Council to understand that the Council proposed to re-develop Onekawa and to build a new 50m pool. The “Council’s decision to that effect” reflected the overwhelming preference of the Napier communities following three years of consultation and stakeholder engagement.
Council’s position
[62] The Council denies it was required to consult the community about the fact the Prebensen Drive option had become its preferred option before undertaking consultation on that very option through the consultation document.
[63] For the respondent, Mr McNamara submitted the LGA imposed no obligation to consult at all stages of a decision-making process. Nor does any such obligation arise at common law. In light of the business case consultation in 2017 and the further information received about the costs and risks of proceeding with the 50m option, as well as the understanding that a new 50m pool was to be developed by the Hawkes Bay Trust, the Council was well equipped to decide that its preferred option was the Prebensen 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 say something about the misapprehension upon which the Society advances that part of its case set out at [61](e) above.
[65] The Society contends the Council actually proposed to build a 50m pool through re-development of the Onekawa facility. The Society submits the Council made a “decision to that effect”.
[66] The evidence shows the Council made no such decision. At its meeting on 8 November 2017 the Council was presented with the results of the community engagement. The Council was in no doubt as to the community’s “clear steer”, as the minutes record.
[67] While it is clear from the minutes that the Council regarded the aquatic centre expansion as “an extremely exciting project”, the Council did not resolve to build a 50m 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 LTP process.
[68] The first part of the resolution at “b” was achieved, but not the second. The new 50m build option was not put out for consultation during the 2018-2028 LTP process and the Society says (in effect) the Council acted unlawfully in deciding to take the Onekawa option off the table.
[69] Mr Williams submitted that the first core issue in the case is whether, having regard to the significance of the decision, the Council failed to discharge the obligation to consult imposed by Part 6 of the LGA because it elected to proceed solely through the LTP process without taking a prior engagement step in relation to its selection of the Prebensen Drive option for consultation.
[70] It has been difficult at times to pin down the exercise of statutory power that the Society challenges.16 Although the statement of claim is clear in identifying the Council’s resolution on 29 June 2018 as the impugned decision, the Society’s focus nevertheless tended to shift at times. That may be attributable to the sense of grievance
16An application for judicial review must identify the statutory power that is the subject of the judicial 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 Onekawa option and are apprehensive about a range of issues, such as: the affordability of swimming if the entry fee increases; accessibility, distance and public transportation options; and that the Council has not paid attention to the fact the heart of the Napier community is in the Onekawa facility. Some deponents express concern about the cost 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 which swimming pool option is best for Napier. It is a case about the process followed by the Council. Yet the challenged decision is described in counsel’s submissions as the decision to close the Onekawa facility and embark on the “Council’s largest ever capital project for a new Aquatic Centre on Prebensen Drive”. To the extent this is identified 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 as being the decision in respect of which the Society seeks a declaration of invalidity.
[73] It is important to restate that the decision being challenged for invalidity is the Council’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 made in accordance with such of the provisions of ss 77, 78, 80, 81 and 82 as were applicable. 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 the objective” 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-making process, to consider the views and preferences of persons likely to be affected or have an interest in the matter. In this case the matter was the re-development of the Napier aquatic centre. But the Council was not required by s 78 alone to undertake any consultation process or procedure.18
[78]Thirdly, s 79, to which ss 77 and 78 are subject, provides:
79Compliance with procedures in relation to decisions
(1)It is the responsibility of a local authority to make, in its discretion, judgments—
(a) about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and
(b) about, in particular,—
(i) the extent to which different options are to be identified and assessed; and
(ii) the degree to which benefits and costs are to be quantified; and
(iii) the extent and detail of the information to be considered; and
(iv) the extent and nature of any written record to be kept of the manner in which it has complied with those sections.
(2)In making judgments under subsection (1), a local authority must 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; and
17 Local Government Act 2002, s 77(1)(a)–(b).
18 Section 78(3).
(c) the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.
…
[79] So, in this case, s 79 gave the Council the responsibility for making, in its discretion, judgments about:19
(a)how to achieve compliance with ss 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the significance and engagement policy under s 76AA; and
(b)the extent to which different options are to be identified and assessed; the degree to which benefits and costs are to be quantified; the extent and details of the information to be considered; and the extent and nature of any written record to be kept of the manner in which it has complied with those sections.
[80] The fourth and final particular statutory obligation required any consultation the Council undertook to be in accordance with the principles in s 82(1). Section 82 provides:
82 Principles of consultation
(1) Consultation that a local authority undertakes in relation to any decision 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 an interest in, the decision or matter should be provided by the local authority with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of those persons:
(b)that persons who will or may be affected by, or have an interest in, the decision or matter should be encouraged by the local 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 their views to the local authority should be given clear information by the local authority concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented:
(d)that persons who wish to have their views on the decision or matter considered by the local authority should be provided by the local authority with a reasonable opportunity to present those views to the local authority in a manner and format that is appropriate to the preferences and needs of those persons:
(e)that the views presented to the local authority should be received by the local authority with an open mind and should be given by the local authority, in making a decision, due consideration:
(f)that persons who present views to the local authority should have access to a clear record or description of relevant decisions made by the local authority and explanatory material relating to the decisions, which may include, for example, reports relating to the matter that were considered before the decisions were made
(2) A local authority must ensure that it has in place processes for consulting with Māori in accordance with subsection (1).
[81] Subsection (3) provides that, subject to subs (4) and (5), the principles in subs (1) “are to be observed by a local authority in such manner as the local authority considers in its discretion, to be appropriate in any particular instance”. In exercising its 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 persons who will or may be affected by, or have an interest in, the decision or matter are known to the local authority; and
(c)the nature and significance of the decision or matter, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in, the decision or matter; and
(d)the provisions of Part 1 of the Local Government Official Information and Meetings Act 1987 (which Part, among other things, sets out the circumstances in which there is good reason for withholding 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 City Council v Minotaur Custodians Ltd.21 The Court was concerned with the highly prescriptive manner by which s 78(2) required a local authority to give consideration to the views and preferences of people likely to be affected or to have an interest in the 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 Appeal recently confirmed Minotaur as “the leading decision concerning the obligation on local authorities to consult”.22
[83] In relation to the principles of consultation set out in s 82, the Court of Appeal in Minotaur said:
[38] The effect of this provision is that, when a council does choose to consult, certain “principles” apply to the particular forms of consultation the council adopts: most relevantly, those affected should have access to relevant information in an appropriate format and be encouraged to present their views having been given clear information as to both the purpose of the consultation and the scope of any likely decision. Further, a council must ensure that interested or affected parties have a reasonable opportunity to present their views, 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) that the “how” of compliance with these guidelines is a matter for the local authority. That proposition is subject to the following further considerations which the local authority must (relevantly) bear in mind:
(a)the terms of s 78 including, presumably, the fact that it is subject to the reservation to the local authority of the decision of how to implement;
(b)whether the views of those affected are already known to the local 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 its discretion 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 to decide in its discretion how ss 77 and 78 are to be complied with — the fourth such restatement of that principle in pt 6. Importantly, s 79(1)(b)(iv) provides that it is for the local authority to decide the extent and nature of any written record 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 idea that there is to be found in its provisions any duty to consult with affected or interested parties. Instead, local authorities are given a deliberately broad discretion 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 statutory decisions, consultation decisions must be rational and consistent with the objects of the LGA and the particular controlling provisions. We consider this is the real issue in this case, and we return to it below.
[85] The applicant argues that the challenged decision is invalid because the Council failed to comply with the statutory requirements in relation to the special consultative procedure as provided in ss 93(B), 93(C) and 93(G) of the LGA and because the Council failed to comply with the requirements of ss 76, 77, 78, 80, 81 and 82 of the LGA.
Decision
[86] The Society relies on the requirement imposed by s 78 on a local authority to consider the views and preferences of persons likely to be affected or have an interest in the matter. Mr Williams submitted the Onekawa site option was the least preferred option by a considerable margin. Mr Williams submitted that the flaw in the respondent’s position is revealed in Mr Jack’s affidavit evidence that:
… consultation on the two options through the LTP would test the level of community support for the proposed Prebensen Drive location and the closure of Onekawa facilities, or the alternative option included in the 2018 LTP consultation document (existing pool extension at Onekawa).
[87] Mr Williams submitted it is the assumption underlying this evidence that lies at the heart of the case because, simply put, the Council may have had a good understanding about pool options and facilities for the Onekawa site but it had no understanding whatsoever of community views and preferences regarding the Prebensen Drive site in its own right or by way of comparison with Onekawa or by way of comparison with any other site in Napier.
[88] In my view, the submission proceeds on a misunderstanding of the nature of the obligation under s 78. There is no general consultation obligation attaching to all decisions of a local authority. The Court of Appeal has twice emphasised that “pt 6 of the LGA carefully and repeatedly rejects the idea that there is to be found in its provisions any duty to consult …”.23 (Emphasis added.)
[89] The point is put beyond doubt by the repeal of s 78(2). The explanatory note to the Local Government Act 2002 Amendment Bill 2010 stated the amendments were intended to operate at two levels: a strategic level and an operational level. At the operational level the 2010 bill aimed to simplify local authorities’ decision-making processes. This was to be achieved by (inter alia) removing unnecessary consultation. Accordingly, the four different stages in the decision-making process when a local authority was required by s 78(2) to consider the views and preferences of persons likely to be affected by or have an interest in the matter, were repealed. The bill also removed most of the LGA’s requirements to use the special consultative procedure and modernised that procedure so new techniques for communicating and consulting with the public could be accommodated.24
Having more flexibility about how to consult will enable Councils to design decision-making and community engagement processes that are appropriate to different circumstances, and in proportion to the matter being considered.
[90] In the course of its decision-making process on the Napier aquatic centre, the Council considered the community’s views at key stages of its decision-making.
(a)It considered the community views obtained between September and October 2017 following the Council’s engagement on the three options from the business case and before resolving on 8 November 2017 to support the development of designs and costings for the Onekawa option, to be considered during the 2018–2028 LTP consultation.
(b)The Council considered community views again when it decided to include in the consultation document the Prebensen Drive option and the “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 that the “community feedback was for a 50m pool” but it was no longer a feasible option. Mr Jack proposed amendments to the consultation document that addressed the continuing increases in construction and operating costs and the cost of the concept to households amounting to more than a $100 annual addition to rates. All but two Councillors (who did not respond) replied expressing support for removal of the 50m option from the consultation document.
(c)The Council considered community views once again when it met for the purpose of considering the community’s submissions on the LTP consultation document.
[91] At no stage was the Council in any doubt as to the community’s strong preference for a 50m pool at Onekawa. However, the Council was not required by any provision in the LGA to give effect to that preference. The relevant obligation required the Council, in the course of its decision-making, to consider the views and preferences of people likely to be affected or have an interest in the matter. The Council had formed the view it was no long reasonably practicable, or financially prudent, to proceed with the 50m Onekawa pool option. The evidence shows the Council met the relevant obligation on it before making the decision to exclude the Onekawa 50m pool option from the consultation document and to invite the community’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 the discretion given to the Council by s 82(3) of the Act, the Council was required to have regard to the nature and significance of the decision or matter, and that therefore the reference 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 of its decision-making, it will identify and assess practicable options25 and how it will consider community views and preferences.26 Compliance with ss 77 and 78 is to be
[199] In my view, this ground of challenge is supported by neither the facts nor the law. Mr McNamara characterised the decision to apply a casting vote “as a matter of judgment 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 the democratic accountability of the office holder who so acts. There is no basis for invalidating the decision short of the Society demonstrating that the casting vote was indeed unreasonable in the sense that it was “so ‘perverse’, ‘absurd’ or ‘outrageous in
its defiance of logic’ that Parliament could not have contemplated such [a] decision being made by an elected council”.44
[200] In this case, as in Love v Porirua City Council “the Chairman on the occasion had a duty to ensure that a decision upon the application then before the Council was given one way or another. In the event of an equality of votes there would have been no such decision … At best the matter would have been left in the air with a clear need for 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 acting Mayor. And I have found, under the seventh ground of review, that the Society has not made out its claims that Councillors were constrained in their ability to deliberate freely.
[202] The Society has not established the casting vote was unreasonable nor that the Council’s decision to approve the scope of the tender was invalid.
Ninth ground of review: wrongful reliance on significance and engagement policy
Society’s case
[203] Under this head of review the Society seeks to have the impugned decision declared invalid on the grounds that:
(a)the Council introduced an amendment to its significance and engagement policy without consulting on the amendment; and
(b)in making the impugned decision the Council wrongly relied on the amendment it had made to its policy.
[204] In essence the Society’s concern is that, relying on an exception to the need to engage, the Council promoted the Prebensen Drive option for aquatic centre
44 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 the proposal through its significance and engagement policy.
Council’s position
[205] The Council accepts it amended its significance and engagement policy without engaging the community on the amendment. But its position is that consultation 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 with the community in relation to the final options for the Napier aquatic centre would be via the consultation document.
Discussion
[206] As required by s 76AA (set out above at [55]) the Council had a significance and engagement policy. The policy, approved on 1 November 2014, stated:
This policy will be reviewed at least once every three years, when it will involve community engagement. It may also be amended from time to time.
[207] A review of the policy was initiated in October 2017. A significance and engagement policy is to set out the local authority’s general approach to determining the significance of proposals and decisions.46 At a presentation to Councillors on 15 November 2017 the question of when the Council would engage was canvassed. The presentation slides suggested factors warranting the Council’s engagement with the community:
When we engage
Degree of Significance
·Impact (financial, levels of service, community)
·Changes to a Strategic Asset
·Community interest
·Permanency
·Legal requirement
When we may not engage
·Time constraints
·Low degree of significance
46 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’s Finance Committee at its meeting on 6 December 2017. The Committee resolved to approve a revised policy which “provided greater clarity, includes tools and guidance to determine significance and levels of engagement, and aligns with international best practice”.
[209] The new policy was adopted by Council on 20 December 2017. Several new sections were added to the policy including the following:
When Council may not engage
There may be situations when engagement is impractical or unnecessary because:
• of time constraints e.g. failure to make a decision urgently would result in unreasonable or significant damage to property, or risk to people’s health and safety, or the loss of a substantial opportunity to achieve 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 already known
• the timing of the decision means it would be better dealt with through the Long Term Plan
[210] The Society says the exception from engagement which the Council has carved out on the grounds that engagement may be impracticable or unnecessary was not consulted 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 scheme and requirements of pt 6 of the LGA;
(b)as a matter of principle, the exception should not be interpreted to allow an outcome which effectively defeats the intent of the parent legislation, (and the significance and engagement policy itself); and
(c)the assumption inherent in the Council’s reliance on the exception reveals the same error this same Council made in Gwynn v Napier City Council.47
[212] In that case, Dr Gwynn challenged the adequacy of the process adopted by the Council in considering whether it would promulgate a policy exempting traders from the default position under the Shop Trading Act 1990 which, broadly, prohibits Easter Sunday trading. The Council understood that the process under the special consultative procedure, which it had followed, meant it was unnecessary to comply with features of other consultation processes provided for in ss 78 and 82. The Judge was satisfied the principles of consultation specified in s 82 of the LGA applied when a local authority undertakes consultation pursuant to the special consultative procedure. Therefore, the Council had breached the statutory consultation obligations on it. There were other grounds of review but none involved any kind of challenge in relation to the significance and engagement policy. In fact, the Council’s significance and engagement policy is not mentioned in the judgment.
[213] The issue in this case is whether the Council should have consulted on its amendment and even if it was not required to consult on the amendment, whether it was wrong of the Council to consult on the aquatic centre development through the LTP process rather than under its significance and engagement policy.
[214] Section 76AA(4) expressly permits a local authority to amend its significance and engagement policy from time to time. The local authority must consult on the amendment in accordance with s 82 unless48
… it considers on reasonable grounds that it has sufficient information about community interests and preferences to enable the purpose of the policy to be achieved.
[215] The question then is whether the Council had reasonable grounds for considering it had sufficient information about community interests and preferences to 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 consult on the amendment.
[217] Mr McNamara drew attention to the 2014 Local Government Act Amendment Act, one of the effects of which was to replace the “significance policies” under the now repealed s 90 with significance and engagement policies.49 The Bill aimed to “remove unnecessary consultation”.50 The significance and engagement policies replaced their predecessor “significance policies” as part of the suite of amendments in 2014 to reduce “the number of occasions when the costly and time-consuming special consultative procedure has to be used”.51
[218] The Council’s 2014 significance and engagement policy described its general approach to engagement in this way:
[e]ngagement is a term used to describe the process of seeking information from the community to inform and assist decision-making. There is a spectrum of community involvement, and NCC follows these general principles …
[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 of criteria (Engagement Spectrum) to assess the approach we might take to engage the community.
…
Decisions will be “informed” as a minimum standard. Decisions of high significance will be at the very least informed to wider communities, and will use engagement tools and techniques beyond “inform” for affected communities. …
The level of engagement will be agreed on a case-by-case basis. … A low level of engagement does not mean that engagement is diminished, inappropriate or necessarily that a decision is of lesser significance. Time and money may limit what is possible on some occasions.
[220] I have compared the 2014 policy with the 2017 policy. The policy statement is unchanged from the 2014 statement. The amendments made to the “Criteria for Significance” are not substantive. And the addition of the statement identifying the
49 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 the subject of consultation. Whereas the 2014 policy stated that “in every issue requiring a decision the Council will consider the degree of significance and the most appropriate level of engagement” the amendment went further and clarified for the community the circumstances when engagement might be impractical or unnecessary: because of time constraints; because the matter is not significant or is regarded as business as usual; when the Council already knows the views of the community; or because 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 reliance on one of these exceptions to engagement, as the Society does in this case. But that does not mean it was necessary to consult on an amendment that serves only to clarify the circumstances in which communities might not be engaged.
[222] The Society’s case is that the Council promoted the Prebensen Drive option through the LTP in reliance on the exception to the need to engage stated in the significance and engagement policy. That is simply not correct. The Council decided prior to the amendment that engagement on the Napier aquatic centre would be through the LTP process. The minutes of the Council meeting on 8 November 2017 record the Council’s resolution to “support the development of designs, schedule and costings for Option 352 to be considered during the 2018–28 LTP process. On 6 December 2017, many weeks after the Council resolved to consult through the LTP process, the Council approved the amended significance and engagement policy. In other words, regardless of the amendment to the policy, the Council had decided to use 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 the aquatic centre development decision-making process motivated the changes to the policy. I accept Mr Jack’s evidence:
The amendment was not, as Mr W… suggests, an “exception” to some kind of default position that consultation would be undertaken for all decisions.
52At that stage Option 3 was the Council’s preferred option, namely the new build 50m option at Onekawa.
Nor was the change to the Policy motivated or influenced by the Council’s consultation 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 submit memoranda not exceeding 12 pages if they are unable to agree costs. Any memorandum on behalf of the Council should be filed and served within 20 working days from the date of this judgment. Any memorandum in response is to be filed and served within 10 working days following.
Karen Clark J
Solicitors:
Langley Twigg, Napier for Applicant Simpson Grierson, Wellington for Respondent
Glossary of terms
| Abbreviation | Definition and paragraph where first defined |
| Business Case | The report completed in June 2017 by GLG: [6] |
| Consultation document | The document approved by the Council for public consultation on the 2018–28 long term plan: [26] |
| GLG | Global Leisure Group, which the Council engaged to develop a business case in relation to replacing pool facilities at NAC: [5] |
| Impugned decision | The decision at the heart of the judicial review claim and described in the statement of claim as Napier City Council’s resolution on 29 June 2018 to adopt the 2018–2-28 LTP |
| Ivan Wilson Complex | The 25m lane pools and extras within the NAC: [4](a) |
| LGA | Local Government Act 2002 |
| LTP | Long term plan: [11] |
| NAC or Onekawa facility | Napier Aquatic Centre at Onekawa: [1] |
| New build option or 50m new build option | A new build complex to replace all NAC facilities at Onekawa: [8] |
| PDP | Pattle Delamore Partners Ltd who prepared a report in 2009 that was referred to in the RFP: [14] |
| RFP | The request for proposal that the Council released seeking a consultant to assist with the tasks associated with the design and construction of a new build scenario at Onekawa: [13] |
| RLB | Rider Levett Bucknall who prepared a master plan budget provided to Councillors prior to their making the challenged decision: [21] |
| SEP | The Significance and Engagement Policy prepared pursuant to s 76AA of the Local Government Act 2002: [38] |
| TBIG | The building intelligence group instructed to price a new 50m pool at Onekawa: [15] |
| TBIG information | The schedules containing the information the Council sought from TBIG: [16] |
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