Save Chamberlain Park Inc v Auckland Council
[2018] NZHC 1462
•19 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-001073
[2018] NZHC 1462
BETWEEN SAVE CHAMBERLAIN PARK INCORPORATED
Applicant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 8 February 2018 Appearances:
Julian Long, Caitlin Hollings and Douglas Cowan for the Applicant
Katherine Anderson and Harriet Quinlan for the Respondent
Judgment:
19 June 2018
JUDGMENT OF MOORE J
This judgment was delivered by me on 19 June 2018 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
SAVE CHAMBERLAIN PARK INCORPORATED v AUCKLAND COUNCIL [2018] NZHC 1462 [19 June 2018]
Contents
Paragraph Number
Introduction.............................................................................................................. [1]
Factual background
History, present configuration and use.................................................................. [3]
The Albert-Eden Local Board.............................................................................. [12]
Save Chamberlain Park Inc................................................................................. [20]
This application...................................................................................................... [21]
(a)First cause of action: the allocation decisions........................................ [22]
(b)Second cause of action: failure to collaborate and co-operate with other boards[24]
(c)Third cause of action: predetermination................................................... [25]
(d)Fourth cause of action: obligation to consult........................................... [26]
Approach................................................................................................................ [27]
First cause of action: did the allocation decisions amount to an error of law?
Introduction.......................................................................................................... [28]
The Council and its functions under the LGAC.................................................. [30]
Relevant allocation decisions.............................................................................. [46]
Analysis................................................................................................................ [60]
The AELB, Chamberlain Park and the background to the second, third and fourth causes of action
Introduction.......................................................................................................... [94]
Early steps............................................................................................................ [96]
Initial consultation on the draft AELB Plan...................................................... [112]
Further consultation and the preparation of the Master Plan.......................... [125]
Consultation on the four scenarios and the Master Plan.................................. [144]
Second cause of action: Did the AELB fail to collaborate and co-operate with other boards?
Introduction........................................................................................................ [154]
Submissions........................................................................................................ [156]
Analysis.............................................................................................................. [159]
Third cause of action: Did the AELB approach its decision-making with a closed mind?
Introduction........................................................................................................ [171]
Predetermination – legal principles.................................................................. [174]
Analysis.............................................................................................................. [186]
(a)Was there predetermination before February 2014?.............................. [188]
(b)Events between February 2014 and April 2015.............................. [200]
(c)The in principle decision of 22 April 2015...................................... [216]
Conclusion on predetermination........................................................................ [224]
Fourth cause of action: Was there a failure to consult on the case for change?
Introduction........................................................................................................ [225]
Consultation obligations: legal principles......................................................... [227]
(a)LGA principles................................................................................. [229]
(b)A common law duty of consultation?............................................... [248]
Consultation: assessment................................................................................... [253]
Having an open mind: legal principles.............................................................. [273]
Having an open mind: assessment..................................................................... [276]
Conclusion......................................................................................................... [282]
Result.................................................................................................................... [286]
Costs...................................................................................................................... [288]
Introduction
[1] Auckland is this country’s largest and one of its most rapidly expanding centres. As the city’s demographics change, the diverse needs of its many communities correspondingly grow. This judgment concerns decisions by the Auckland Council (“the Council”) and the Albert-Eden Local Board (“the AELB”) to meet those changing needs; the proposed redevelopment of the Chamberlain Park Golf Course (“Chamberlain Park”) into a multi-facility space for the wider benefit of local communities.
[2] The questions for determination in these proceedings are whether those decisions were correct in accordance with public law principles.
Factual background
History, present configuration and use1
[3] In 1939, what was described as a scrubby area of bush and waste land used as a water collection area for the Western Springs pumping station, was converted by hand into an 18-hole golf course known as Chamberlain Park.2
[4] Chamberlain Park has, at all times, been owned by the Council or its earlier iterations. It has always been an 18-hole golf course although its configuration has been slightly modified over time.
[5] Chamberlain Park is presently a par 69 for men with a standard number of par 3, par 4 and par 5 holes. The course plays between 5,040 and 5,242 metres. For women, the course is a par 70. The 12th is one of the longest par 5 holes in Auckland.
[6] The golf facilities at Chamberlain Park comprise a simple club house and associated parking area. The club house has a rudimentary pro shop where purchases of golf clubs, balls, tees and other golf accessories may be made. Golf clubs can be
1 See generally the Affidavit of Richard Quince, sworn 10 August 2017.
2 Named after Neville Chamberlain, Prime Minister of the United Kingdom between 1937 to 1940.
hired. In the past the club house also accommodated a small café where food and drink could be purchased.
[7] Two incorporated societies operate the golf course and use the facilities. These are the men’s and ladies’ golf clubs. Members pay an annual subscription.
[8] However, unlike most other golf clubs, membership of Chamberlain Park does not entitle the member to play on the course. This limitation reflects the history of Chamberlain Park which was operated by the then Auckland City Council. In 1996 management passed to a private company, Auckland City Golf Ltd under a lease.
[9] In July 2013 Auckland City Golf Ltd ceased operations and control passed back to the Council. Since then the course has been managed by the Council through its City Parks Services under contract to the AELB.
[10] The green fees are modest and affordable. That is an historical artefact which reflects the Council’s requirements when previous, private operators ran the golf course. Chamberlain Park also differs from most other golf courses in that there are no reserved times. Players may turn up and play at any time.
[11] Chamberlain Park is one of only two 18-hole public golf courses in the Auckland region which is owned and operated by a public body and is open for play to all comers at any time.3
The Albert-Eden Local Board
[12] The AELB was established as a local board to service the community within its local area as defined by Order in Council dated 15 March 2010.
[13] The local board is responsible for decision-making in relation to those parks and facilities within its area which are not the responsibility of the Council. This includes Chamberlain Park.
3 The other is the Takapuna Golf Course in the Kaipātiki Local Board area.
[14] In 2011 the Council recognised there was pressure on winter sports fields in the Auckland region due to population growth and changing participation trends. The Council commissioned a report from Longdill and Associates on the capacity shortfall of sport fields in the Auckland region to identify and quantify these needs.
[15] The report identified a significant capacity shortfall and projected required additional capacity by 2021. For the area governed by the AELB the required capacity was estimated to be 339 sports field hours per week.
[16] The Council informed the AELB that it was one of five areas in the Auckland region most in need of more space for sports, a need forecast to become critical over the next decade. From 2011 the AELB also received input from various sports clubs and groups within its area. Consistently, these suggested that capacity for sports was stretched.
[17] As a result the AELB campaigned the Council for additional funding to acquire more open space. However, no more space was available. The AELB then looked to identify any existing space within its own boundaries and to examine the means by which it might increase and maximise the use of any existing open spaces.
[18] In 2013 the AELB began to consider Chamberlain Park as part of its wider review of the availability of open spaces. This was prompted by the expiry of Auckland City Golf Ltd’s lease. Because Chamberlain Park was both owned and operated by the Council, the AELB regarded it as sensible to examine the open space at Chamberlain Park. Thus, in February 2014, the AELB asked Council policy analysts to report on what potential other uses might be made of Chamberlain Park.
[19] The detail of that examination is discussed later in this judgment. In summary, the AELB briefed the Council’s policy analysts to assess Chamberlain Park to determine whether it could accommodate a nine-hole golf course, a driving range, a Chinese garden, an aquatic centre and eight to nine sports fields. The purpose of the referral was to obtain options for redevelopment on which the AELB would consult.
Save Chamberlain Park Inc
[20] The applicant, Save Chamberlain Park Inc (“Save CP”), is an incorporated society established by a group of like-minded individuals. Initially its purpose was to identify and lobby mayoral and local board members and candidates to retain Chamberlain Park in its present configuration. A website was set up to emphasise the Auckland-wide community nature of Chamberlain Park and to advance the case for opposing redevelopment. Members of Save CP include golfers and others who share a common interest in retaining Chamberlain Park in its current form.
This application
[21] These proceedings challenge the lawfulness of the Council’s decision-making in relation to the development of a Master Plan for Chamberlain Park. There are four causes of action.
(a)First cause of action: the allocation decisions
[22] The first cause of action and Save CP’s principal challenge focuses on whether the correct governance arm of the Council made decisions regarding the recreational use of Chamberlain Park. From its inception in November 2010, the Council has operated on the basis that the local board possesses the decision-making responsibility for Chamberlain Park. Save CP says decisions by the AELB relating to Chamberlain Park are unlawful because they should have been made by the governing body, not the AELB.
[23] If Chamberlain Park fails in this aspect of its challenge, it pleads three further causes of action.
(b)Second cause of action: failure to collaborate and co-operate with other boards
[24] Save CP says the local body breached any obligation under s 16(3) of the Local Government (Auckland Council) Act 2009 (“the LGAC”) to collaborate and co- operate with other local boards; an obligation which arose “in relation to any change of use of Chamberlain Park”.
(c)Third cause of action: predetermination
[25] Save CP next alleges the local board predetermined to change the use of Chamberlain Park from the “existing status quo”. It says this predetermination arose sometime before February 2014, being the time Council staff were asked to prepare an assessment of Chamberlain Park. It also says that the AELB approached community engagement in consultation with a “closed mind as to the status quo and the possibility or desirability of that being maintained”.
(d)Fourth cause of action: obligation to consult
[26] Finally, Save CP claims the local board breached a positive obligation to consult that required it “to consult on the status quo at the outset”. This aspect of the claim overlaps in part with the third cause of action.
Approach
[27] Before turning to consider each of the causes of action, it is apposite to briefly comment on the Court’s role in considering the judicial review of the exercise of powers by a local authority. As Richardson P stated in Wellington City Council v Woolworths New Zealand Ltd (No 2), proceedings of this sort involve, essentially, questions of statutory interpretation.4 The Court may review whether the local authority observed the criteria and purposes specified in the legislation and excluded considerations which were extraneous and did not make their decision for a purpose not contemplated by the legislation. The Court may also review whether the decision was reasonable in the sense that the outcome of the local authority’s exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, and the only proper inference is the power itself has been misused. Something overwhelming is required for that second conclusion.5
4 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.
5 At 545, citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR.
First cause of action: did the allocation decisions amount to an error of law?
Introduction
[28] This first cause of action concerns the Council’s allocation powers under s 17 of the LGAC. That section empowers the “governing body” to reserve decision- making responsibility for any non-regulatory activity to itself or delegate that power to local boards. Save CP argues that the allocation of decision-making in respect of Chamberlain Park to the AELB was unlawful and, thus, void. Section 17 has not previously been considered by the courts.
[29] In order to resolve this issue, the process by which the allocation of decision- making responsibility occurred requires some description. This is comprehensively covered in the evidence of Phillip Wilson, the governance director of the Council and a member of the Council’s executive leadership team. Mr Wilson’s division supports the activities of the Mayor, 20 councillors and the 21 local boards. As such, he has specific responsibility for ensuring local boards have the support necessary to fulfil their roles and ensuring the Council organisation effectively balances local views and aspirations against regional network planning.
The Council and its functions under the LGAC
[30] The Council was established on 1 November 2010 under the LGAC; bespoke legislation for Auckland. The Council makes decisions for the Auckland region which extends to Te Hana in the north, Pukekohe to the south, Kawakawa Bay to the east and Piha to the west.6 The LGAC sets out its structure and functions, duties and powers which differ from the general provisions applying to other local authorities operating under the Local Government Act 2002 (“the LGA”) and other enactments.7
[31] There are two classes of decision-making within the Council.8 The Council, as the governing body, is a unitary authority. More proximate to Auckland’s communities, local boards are responsible for local decision-making.
6 As defined in the Local Government (Auckland Boundaries) Determination 2010, and contained in a map with the reference number LGC-Ak-R1.
7 Local Government (Auckland Council) Act 2009, s 3(b).
8 The Auckland Council’s governance structure also includes the Independent Māori Statutory Board, established by s 81, and whose members sit on certain committees in accordance with s 85.
[32] The “governing body” is defined in ss 4 and 8 as the entity comprising the members of the Council, being the Mayor and Council members, elected in accordance with the Local Electoral Act 2001. Certain decisions under the LGAC are reserved for the governing body. These include the setting of rates and all regulatory decisions.
[33] Other decisions are reserved for local boards. Local boards are established for each local board area and also made up of members, elected by the local board constituency.9 Local boards are unincorporated bodies and thus do not have separate legal standing from the Council.10
[34] Local boards enjoy a broad mandate. As Ms Anderson for the Council emphasises, local boards are not community boards. While community boards act solely under delegated authority,11 local boards have the power to make specific decisions on behalf of the Council relating to matters affecting their local board areas which are set out in statute;12 delegated by the governing body or by Auckland Transport;13 or allocated by the governing body pursuant to s 17. They also have governance responsibilities over a discrete set of local assets, services and activities, a responsibility to provide input into regional plans, policies and decisions, and to engage with their communities to identify local needs and preferences.
[35] In the scheme of the LGAC, s 17 is one of a number of provisions which prescribe the manner by which the Council makes its decisions.14 It concerns what Mr Wilson describes as “a middle group of decisions”, non-regulatory decisions. The governing body is responsible for determining the appropriate allocation of non- regulatory decision-making between the governing body and the local boards, based on principles set out in s 17 of the LGAC. It is these allocations which are the focus of the first cause of action.
[36] Section 14 sets out the general scheme of Council decision-making. It provides that both the governing body and local boards are responsible and democratically
9 Sections 10, 11.
10 Section 12.
11 The establishment of community boards is provided for in s 49 of the Local Government Act 2002.
12 As provided in ss 13 and 16 of the Local Government (Auckland Council) Act 2009.
13 See sections 13 and 31, and 13 and 54, respectively.
14 See generally sections 14 to 23.
accountable for the decision-making of the Council. Whether the responsibility for making any particular decision rests with the governing body or with one or more of the local boards depends on the nature of the decision being made.15 Decision-making responsibility is then allocated in subs (3) as follows:
(a)section 15 sets out the classes of decisions which the governing body must make, including decisions in relation to some non-regulatory activities;16
(b)section 16 sets out the classes of decisions which local boards must make, including decisions in relation to some non-regulatory activities;17 and
(c)section 17 guides the governing body’s exercise of its power to allocate responsibility for decisions in respect of non-regulatory activities of the Council, either to itself or the local boards.
[37] “Non-regulatory activities” are not defined (a point I return to later), but “local activities” are defined as “the non-regulatory activities of the Auckland Council in respect of which a local board is allocated decision-making responsibility under section 17”, and include providing services, providing and operating facilities, and providing funding and other support to groups and organisations.18 Section 17, in its entirety, is set out below:
“17Principles for allocation of decision-making responsibilities of Auckland Council
(1)Decision-making responsibility for any non-regulatory activity of the Auckland Council must be allocated by the governing body—
(a)to either the governing body or the local boards; and
(b)in accordance with the principles set out in subsection (2); and
(c)after considering the views and preferences expressed by each local board.
15 Section 14(2).
16 Section 15(1)(b)(ii).
17 Section 16(1)(a).
18 Section 4.
(2)The principles are—
(a)decision-making responsibility for a non-regulatory activity of the Auckland Council should be exercised by its local boards unless paragraph (b) applies:
(b)decision-making responsibility for a non-regulatory activity of the Auckland Council should be exercised by its governing body if the nature of the activity is such that decision making on an Auckland-wide basis will better promote the well-being of the communities across Auckland because—
(i)the impact of the decision will extend beyond a single local board area; or
(ii)effective decision making will require alignment or integration with other decisions that are the responsibility of the governing body; or
(iii)the benefits of a consistent or co-ordinated approach across Auckland will outweigh the benefits of reflecting the diverse needs and preferences of the communities within each local board area.”
[38]A number of key principles appear in the text of s 17:
(a)Allocation decisions are mandatory. Only two bodies may be allocated responsibility; the governing body or the local boards. No other entity may exercise decision-making responsibility for non-regulatory activities. It is not permissible for an activity not to be allocated.
(b)Allocations must be made in accordance with the principles set out in s 17(2).
(c)Allocation decisions are only to be made after the governing body has considered the views and preferences expressed by each local board.
[39] I agree with Mr Long, for the applicant, when he submits that the allocation power under s 17 is not unfettered. It must be exercised in a principled way. Section 17(2) lists the principles which the governing body is obliged to follow when making an allocation decision. It contains the presumption that decision-making for a non- regulatory activity of the Council should be exercised by its local boards. That presumption is rebutted only where s 17(2)(b) is engaged, namely where the decision-
making responsibility for a non-regulatory activity of the Council should be exercised by its governing body because the nature of the activity is such that decision-making on an Auckland-wide basis would better promote the well-being of the communities across Auckland. As Mr Long submits, whether paragraph (b) is engaged turns on the nature of the activity.
[40] Listed in s 17(2)(b)(i)-(iii) are three indicators of why decision-making on an Auckland-wide basis would better promote the well-being of communities across Auckland:
(a)because the impact of the decision will extend beyond the single local board area;
(b)because effective decision-making requires alignment or integration with other decisions which are the responsibility of the governing body; or
(c)because the benefits of a consistent or co-ordinated approach across Auckland will outweigh the benefits of reflecting the diverse needs and preferences of the community within each local board area.
[41] As Ms Anderson submits, the focus of s 17(2) is the allocation process. The considerations contained in s 17(2)(b)(i)-(iii) do not invite the application of a tick box exercise. The process necessarily requires the consideration of broader issues beyond those of particular interest groups.
[42] The principles set out in subs (2) reflect the careful balancing of priorities which underpin the division of decision-making power in the LGAC between the governing body and the local board. On the one hand is the need, recognised in the purpose section and s 9,19 for unified and streamlined decision-making in the Auckland area. On the other is a desire to maintain and enable democratic decision-making within local communities, recognised in ss 10, 16 and 20.
19 Section 9 provides that the role of the Mayor is to articulate and promote a vision for Auckland and provide leadership for the purpose of achieving objectives that will contribute to that vision.
[43]Section 20 requires each local board to adopt a plan, the purpose of which is:20
“(a) to reflect the priorities and preferences of the communities within the local board area in respect of the level and nature of local activities to be provided by the Auckland Council over the next 3 years; and
(b)to identify and describe the interests and preferences of the people within the local board area for the purposes of enabling the local board to communicate those interests and preferences for the purposes of section 16(1)(b); and
(c)to provide a basis for developing the local board agreement for each of the next 3 years; and
(d)to inform the development of the next LTP, particularly in relation to the identification of the non-regulatory activities of the Council for which decision-making responsibility should be allocated to the local board; and
(e)to provide a basis for accountability of the local board to the communities in the local board area; and
(f)to provide an opportunity for people to participate in decision-making processes on the nature and level of local activities to be provided by the Council within the local board area.”
[44] As Ms Anderson submits, this is a mechanism by which local boards are able to determine local preferences and priorities in relation to non-regulatory activities for which they have been allocated responsibility, and consult with their communities. Parliament’s Auckland Government Legislation Committee, on its amendments to the Local Government (Auckland Council) Bill which led to the inclusion of s 17, is recorded as saying:21
“Our amendments seek to ensure that decision-making by the two tiers of the Auckland Council would be allocated according to clear principles, and that the governing body of the Council and the local boards would sit alongside each other and have distinct roles, rather than operate in a hierarchical relationship.”
[45] The division of responsibility set out in s 17 reflects this framework. As Ms Anderson submits, the principle that local boards are best placed to make most decisions is underscored by the presumption contained in s 17(2)(a). However, as Mr Long adds, the principles listed in s 17(2)(b) recognise that some non-regulatory
20 Section 20(2).
21 Local Government (Auckland Council) Bill (36-2) (select committee report) at 3.
decisions concerning certain activities might, on closer examination, be better suited to the wider focus of the governing body.
Relevant allocation decisions
[46] One of the early tasks in the rollout of the new unitary authority was the initial allocation of non-regulatory decision-making between the governing body and the local boards. The Auckland Transition Agency (“the ATA”) was mandated to carry out this initial allocation.22 The ATA’s allocation was contained in the long term plan (“LTP”) which it prepared for the period 1 November 2010 to 30 June 2012. A LTP is a 10 year forecast which every council in New Zealand is required to publish, and against which the council sets out its 10 year budget. LTPs identify the future focus of council activities, the intended community outcomes and provide local communities with a basis for holding the governing body accountable. Annual plans and budgets are adopted annually.
[47] The ATA’s LTP published its initial allocation in an “allocation table” which listed a wide range of non-regulatory activities and prescribed whether the governing body or a local board was the decision-maker in respect of each activity. After the Council was established and the ATA’s functions were extinguished, allocation tables continued to be published.
[48] Perhaps unsurprisingly, the ATA’s initial allocation table broadly allocated decision-making in respect of “local” recreation and sports activities and open spaces to local boards, and regional activities to the governing body. After the publication of the ATA’s initial LTP allocation table, Mr Wilson describes any further modifications as “incremental in nature”.
[49] Since the ATA’s initial LTP, two further LTPs have been published by the Council. The first was in 2012, covering the decade 2012 to 2022. The second was published in 2015 for the period 2015 to 2025. The allocation decisions by the ATA
22 The ATA was established under the Local Government (Tamaki Makaurau Reorganisation) Act 2009.
and in the 2012 LTP are in focus. They were the operative allocation decisions at the time most of the decisions concerning Chamberlain Park were made.
[50] During the preparation of the Council’s 2012 LTP the starting point was the initial ATA allocation table. Amendments identified by exception where experience demonstrated such a need, with a modest number proposed by the Mayor. These were considered by the Strategy and Finance Committee (“the SFC”), which recorded agreement in principle, subject to a review process involving local boards.
[51] During the review process input was received from various sources including local body support staff, a governing body workshop, a review by senior organisational managers and the Mayor’s office. Workshops were held in October and November 2011 with local boards to discuss issues identified by that process. Also considered was a report entitled, “Allocation of Non-Regulatory Decision-Making Responsibilities”. This report acknowledged that more work was required to assist with allocating decision-making of, amongst other things, parks within the ambit of the governing body. The SFC approved the proposed revisions and released a draft plan for public discussion.
[52] The public consultation process included the convening of regional and local public hearings at which submissions were received on the LTP, including the allocation table. The governing body adopted the 2012 LTP on 28 June 2012.
[53] Significantly, regional parks within the governing body’s decision-making ambit were listed in Schedule 1 of the allocation table. Decision-making for all remaining parks was allocated to local boards. Schedule 1 is entitled, “Regional Facilities and Parks”. Regional parks are listed as those subject to Treaty of Waitangi settlements and parks delivering Auckland-wide benefits. No regional recreation facilities are listed. However, responsibilities in respect of both recreational services and parks services were allocated.
[54] While this work was being undertaken other policy work had commenced on the question of which parks, if any, should be considered as delivering “Auckland- wide benefit”. On 15 February 2012, the SFC agreed that the Regional Development
and Operations Committee (“the RDOC”) would approve a procedure for an evidence- based assessment of Auckland-wide benefits delivered by parks and the creation of a schedule of specific parks delivering Auckland-wide benefits. In its report of 24 May 2012 the RDOC noted “a purely criteria-based assessment of Auckland-wide benefit has limitations as a basis for decision-making for parks services” and resolved that further engagement with the local boards should be undertaken:23
“It has become evident from the work to date that further discussion between Local Boards and members of the governing body is required in order to reach a final decision making allocation in an open, consultative and transparent way. The aspiration to resolve the allocation of decision making for parks services before the adoption of the Long-term Plan does not allow sufficient time for appropriate discussions with Local Boards to take place.
The preferred approach is to retain the status quo for decision making for parks services as an interim measure while further discussion with local boards is undertaken. Any agreed changes to the current allocation would be implemented as and when possible, and no later than the 2013/2014 Annual Plan.”
[55] A range of possible approaches to determining which parks delivered Auckland-wide benefit were explored. It was agreed that the Parks, Recreation and Heritage Forum (“the Forum”), as a sub-committee, would formulate the appropriate engagement process and compile a schedule of specific parks delivering Auckland- wide benefit prior to consideration by the RDOC.
[56] Engagement with local boards, councillors and external stakeholders on this question was undertaken during late 2012 and early 2013. The ATA’s initial allocation provided the starting point for these discussions. After further meetings and consideration by the Forum, the governing body considered a report entitled, “Clarification of Decision-Making Allocation for Specific Parks” and approved the following regional parks for which it would be the decision-maker:
(a)parks subject to Treaty of Waitangi settlement, including:
(i)identified parks subject to the Treaty of Waitangi settlement with Ngā Mana Whenua o Tāmaki Makaurau (“the Tāmaki Collective”);
23 Affidavit of Philip Richard Wilson, sworn 22 September 2017, at 139.
(ii)identified land contiguous with parks subject to Treaty of Waitangi settlement with the Tāmaki Collective;
(b)parks delivering Auckland-wide benefits, including:
(i)specified regional parks (parks formerly owned or managed by the Auckland Regional Council);
(ii)specific parks or reserves contiguous with regional parks; and
(iii)other specified parks delivering Auckland-wide benefits (the Auckland Domain and Motukorea (Browns Island)).
[57] Decision-making for all other parks was allocated to local boards. Prior to the allocation decisions the governing body had received formal feedback from local boards on the proposed decision-making allocation on specific parks. Consultation with known interested parties was also undertaken. Groups that had previously indicated an interest in the decision-making allocation for parks were invited to provide feedback. The governing body recorded in its report of 22 August 2013 those parks where the decision-making allocation remained “contentious”, or where there may be future Auckland-wide benefits in those parks becoming parks under the regional park network. Chamberlain Park was not referred to.
[58] No similar process was carried out in respect of recreational services or facilities.
[59] The allocation table was also reviewed during the development of the 2015 LTP. On 5 November 2014 the Budget Committee considered a report entitled, “Decision-Making Allocation Review”. This report recommended the draft allocation of the Council’s non-regulatory decision-making responsibilities for inclusion in the 2015 LTP public consultation materials. The AELB presented its priorities to the governing body during a meeting at which the 2015 LTP was considered. Again, there is no evidence of specific consideration of Chamberlain Park during any of these processes. Mr Wilson observes he is not aware of any public submission made in any
LTP or annual plan consultation process on whether the decision-making in respect of Chamberlain Park and/or golfing at Chamberlain Park should be allocated to the governing body.
Analysis
[60] To determine whether an error of law was made, a review of the process actually adopted by the Council is required. With the exception of one point of statutory interpretation, discussed more fully below, Save CP’s submissions were directed to this issue.
[61] Save CP claims the Council erred in law by not identifying Chamberlain Park as a regional recreational facility in terms of s 17(2)(b). Mr Long submits compliance with s 17(2)(b) requires the following steps:
(a)identification of the activity;
(b)assessment and analysis by the governing body, namely whether the activity is such that communities across Auckland would benefit from a regional framework and approach being brought to bear on the decision; and
(c)a decision based on the factors contained in s 17(2)(b)(i)-(iii).
[62] He submits the essence of the principles reflects that some non-regulatory decisions relative to certain activities might, on examination, be better suited to the governing body’s wider geographical and community focus. He claims the factors listed in s 17(2)(b)(i)-(iii) are alternatives; that if one is engaged the governing body should conclude decisions relating to that activity should be made on an Auckland- wide basis. He says the governing body gave insufficient examination to this principle; that the allocation decisions failed to comply with these principles because they were never considered in relation to Chamberlain Park.
[63] In his oral submissions Mr Long summarised Save CP’s position in the following way. It is the governing body’s responsibility to allocate the decision-
making for non-regulatory activities to either itself or local boards. It must do this in accordance with s 17(2). That responsibility must be exercised by a local board unless s 17(2)(b) applies. That provision applies if the nature of the activity is such that decision-making on an Auckland-wide basis would better promote the well-being of communities across Auckland. The statute requires the promotion of the well-being of communities across Auckland where the impact of the decision will extend beyond a single local board area; effective decision-making aligns with other decisions of the governing body; or the benefits of a consistent or co-ordinated approach across Auckland will outweigh the benefits of reflecting the diverse needs and preferences of the communities within each local board area. To properly apply the principles under s 17(2), the decision-maker needs to have made a decision on whether or not s 17(2)(b) applies. To do that, depending on the activity, a positive inquiry into the nature of an asset which falls within the identified activity area must be made and only then may an allocation decision be made.
[64] In summary, Mr Long submits that Chamberlain Park is a unique asset which required the governing body to undertake an analysis as it did in respect of other assets, such as the Auckland Domain. On the evidence, he submits it would appear that Chamberlain Park simply “fell through the cracks and was forgotten”.
[65] Ms Anderson submits the allocation of parks was a result of a comprehensive and considered approach to the allocation criteria in s 17(2)(b). She disagrees with Mr Long’s submission that the factors in s 17(2)(b)(i)-(iii) are alternatives. She says if this interpretation was adopted, it would necessarily result in a dramatic reduction in the number of activities which would fall to local boards because most local parks and facilities attract users from other board areas across Auckland. She also submits that the plain language of s 17(2)(b) does not support Mr Long’s submission because of the inclusion of the word “should”.
[66]I agree with Ms Anderson’s interpretation of s 17(2)(b) for two reasons.
[67] First, the plain meaning of the provision is instructive. Section 17(2) contains the principles which the governing body should comply with when making allocation decisions. Intrinsically, the “principles” is indicative of a permissive, rather than
mandatory, approach to decision-making. They operate as a guide, rather than a constraint. Indeed, the language of the principles at s 17(2)(a) and (b) is permissive.
[68] Namely, the use of the word “should” in contrast to “must” conveys a discretionary, rather than a mandatory, fetter on the exercise of power.24 King CJ, in the Supreme Court of South Australia, had the following to say about the use of the word “should” in a comparable legislative setting:25
“I am unable to agree that the use of the word “should” indicates an intention that the principle be mandatory. The word “shall” is prima facie a word of mandatory import. The same can be said of the word “must” which is now fashionable with Parliamentary counsel as a synonym for “shall”. I think that the use of “should” rather than “shall” or “must” indicates that the sense is not mandatory. The standards specified in the principle are the goal to be aimed at and the planning authority is to be guided by those standards in considering an application for consent.”
[69] Secondly, the inference to be drawn from the section’s plain meaning is not displaced by reference to the scheme of the LGAC and its wider purpose. As already discussed, the LGAC carefully balances the competing priorities underpinning its division of decision-making power. Section 17 is an integral part of the scheme and represents the compromise between those priorities. Resort to principles guiding the governing body’s allocation decisions, rather than mandatory rules, reflects the practical reality that nuanced allocation decisions will often be required to satisfy these competing priorities. The more rigid approach to the application of s 17, as proposed by Mr Long, would not provide the necessary latitude for the governing body when balancing the frequently competing needs of establishing and carrying out its long term vision for Auckland and, where possible, keeping decision-making in the hands of local communities.
[70] Relatedly, there is an implicit acknowledgement in s 16(3) of the LGAC that some responsibilities of local boards will relate to activities which impact on other local board areas.
24 Re Victim X [2003] 3 NZLR 220 (CA) at [28] per Keith J; New Zealand Federation of Commercial Fishermen Inc v Minister of Fisheries HC Wellington CIV-2008-485-2016, 23 February 2010 at [39]-[40].
25 South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at 38.
[71] Against that background I now turn to consider the actual process followed by the Council and whether it complied with s 17.
[72] In their written submissions both Mr Long and Ms Anderson placed some emphasis on the “activity” classification of Chamberlain Park as a recreation facility or open space activity. Presumably this reflected the evidence that while more detailed reports and classifications of parks were prepared over the relevant period, no specific allocation reports were prepared in relation to recreation facilities. No recreation facilities were allocated as regional facilities.
[73] I accept that if adopting the Council’s nomenclature in its allocation tables, Chamberlain Park might be more appropriately classified as a recreation facility. But Chamberlain Park was, at all material times, included within the list of parks. No challenge is made to that categorisation. The issue is not whether Chamberlain Park was properly classified as a park or a recreation facility, but rather whether allocation to the AELB complied with the principles in s 17. After all, the “activity” or “park” tags were classification labels adopted by the Council, not by the LGAC. Furthermore, as the 2012 LTP records, regional sports facilities are generally the responsibility of Regional Facilities Auckland. That is why no parallel process of identification of which recreational facilities were regional occurred and why no regional recreational facilities are listed in the 2012 LTP.
[74] Counsel also disagreed on the level of scrutiny necessary for the governing body to discharge its allocation responsibility. Ms Anderson submits s 17(2) requires allocation of decision-making responsibility in respect of activities such as the provision of facilities, rather than allocation of particular assets. Mr Long submits that the decision-making process followed was erroneous because the actual characteristics of each asset, including Chamberlain Park, were not considered. He submits that compliance with s 17 requires that level of scrutiny.
[75] Section 17 of the LGAC does not refer to Council assets. It refers to “non- regulatory activities”. Neither “non-regulatory activities”, nor “activities”, are defined in the LGAC. But s 4(2) provides:
“4 Interpretation
…
(2)Unless the context requires another meaning, terms and expressions used and not defined in this Act, but defined in the Local Government Act 2002, have the same meaning as in that Act.”
[76]“Activity” is defined in the LGA as:26
“activity means a good or service provided by, or on behalf of, a local authority or a council-controlled organisation; and includes—
(a)the provision of facilities and amenities; and
(b)the making of grants; and
(c)the performance of regulatory and other governmental functions”
[77] Plainly, s 17 is concerned with activities such as the provision and operation of facilities. This means that an error of law cannot be established merely on the basis that the governing body failed to engage in a detailed inquiry into a particular asset. In broad terms then s 17 contemplates an assessment and classification of non- regulatory activities, rather than a granular assessment of individual assets. However, I accept that in exercising its discretion in accordance with the principles in s 17(2) the governing body will, from time to time, be required to consider and consult on specific assets, such as parks. As Mr Long submits, it is the specific asset which will often inform and define the activity under consideration.
[78] Was such a level of scrutiny necessary in respect of Chamberlain Park? This issue requires a closer scrutiny of the allocation decisions made by the Council.
[79] I agree with Mr Long that the initial allocation by the ATA was, to some extent, tautological in the sense it allocated decision-making in respect of “local” activities to local boards and decision-making in respect of “regional” activities to the governing body. But it is also apparent that some consideration of the nature of the decision- making, including the scope of the impact it would have, occurred; in other words whether decision-making would require alignment or integration with other decisions, and the benefits of co-ordination versus reflecting diverse needs. This approach is apparent in the initial allocation for both recreation and sports and open space.
26 Local Government Act 2002, s 5.
[80] In the 2012 LTP, while there is little specificity as to how nominated assets were to be treated (in other words whether they delivered Auckland-wide benefits or not), there is more refined guidance on what non-regulatory activities were within the ambit of local board and governing body decision-making. But in Schedule 1 regional parks are classified in a generic way, as parks subject to Treaty of Waitangi settlement and parks delivering Auckland-wide benefits as regional.
[81] This indicates that the governing body was primarily concerned with non- regulatory activities which would impact on local and regional recreational facilities and parks, rather than the facilities and parks themselves. For example, the use of local parks, and activities conducted within local parks, were allocated to local boards, while the use of and activities conducted within regional parks and the acquisition and divestment of all park land were allocated as governing body responsibilities. This, I believe, illustrates Mr Long’s point. Without a framework for assessing which parks are local and which are regional, aspects of this allocation are, perhaps, tautological.
[82] However, the Council’s analysis did not end there. Further efforts were made at classifying parks which would deliver Auckland-wide benefits. This is evident from a number of governing body committee reports published in 2012 and 2013. One such example is the RDOC’s report which identified a number of issues relating to the application of s 17(2)(b). The report relevantly observed:27
“•There is not always a correlation between the delivery of Auckland wide benefits from specific parks and the requirements of Section 17(2) of the Local Government (Auckland Council) Act 2009 (i.e. a park that is delivering Auckland wide benefits does not necessarily require governing body decision making in order to “better promote the well-being of the communities across Auckland …”)
•There is no clear distinction between local parks and Auckland wide parks. Both local benefits and Auckland wide benefits are delivered throughout the open space network and the mix of benefits change gradually within the ranking from predominantly Auckland wide to predominantly local.
•Auckland wide benefits may be quite specific in nature, and individual parks that largely deliver local benefits may be delivering important Auckland wide benefits of a specific type. Decision making in relation to such parks should be primarily focused on delivery of local
27 Affidavit of Philip Richard Wilson, sworn 22 September 2017, at 140.
benefits, while ensuring the specific Auckland wide benefits continue to be delivered.
…
•There is a range of individuals, groups and organisation (communities of interest) from across Auckland who have an interest in either specific parks, or specific areas of interest that are spread across the park network. For specific local parks, local boards will be the appropriate point of contact for communities of interest. However, where interest spans multiple local board areas, decision making allocation should enable a single point of contact representing Auckland Council.”
[83] These extracts reveal that the governing body was not only well aware of the complexities and tensions implicit in exercising its allocation powers under s 17, but also that the allocations it made were not simply an exercise in tautology. In particular, it is plain the governing body was alive to the principle that activities and assets could not simply be classified by applying one of the considerations contained in s 17(2)(b) in isolation. It specifically considered that while decisions on specific assets might have an impact on communities beyond the local board’s geographic area, it did not follow that in such cases decision-making on an Auckland-wide basis was necessary.
[84] As noted, the governing body called for further consultation with local boards. This was undertaken by the Forum which produced its report on 4 June 2013. The governing body’s report of 22 August 2013 recommended the adoption of the allocations proposed by the Forum. These related to specific park areas within the Auckland area and represented the culmination of further investigation work undertaken over the previous two years. As the report noted:28
“The identification of parks delivering Auckland-wide benefits was made through an assessment of decision making allocation options for a range of specific parks against Section 17(2)(b) of the Local Government (Auckland Council) Act 2009. This assessment was tested with Local Boards and councillors through both workshops and formal meetings. The proposed schedule reflects a consensus view with regard to those parks that deliver Auckland wide benefits.”
28 At 227.
[85] These complexities are discussed by Mr Wilson in his affidavit. He makes the following observations on local versus regional activities:
(a)The Council’s business includes the provision of many types of assets supporting leisure, recreation and sport activities. Such assets include community halls, swimming pools, tennis courts, children’s playgrounds, fitness centres and parks.
(b)For those assets which the Council classifies as local (with decision- making authority allocated to the local board) it would be extremely rare for any Council asset to be used exclusively by the community it is located in. For example, most sports fields are local parks for which a local board will make decisions. However, sports teams from across the region will travel to the sports fields for games.
(c)Members of the community from across Auckland travel to use playgrounds. An obvious example is the playground at Mission Bay which is a local board asset.
(d)West Wave is the only swimming pool servicing West Auckland. Patrons are drawn across the wider Auckland region although the decision-making in relation to the asset lies with the Henderson-Massey Local Board.
(e)Local boards manage community facilities in their areas. Despite this, any person from across Auckland can book a community hall to use.
[86] Mr Wilson observes that he cannot think of an asset managed by a local board which will be used only by members of that local board’s community. He says the effect of Save CP’s interpretation would mean that local boards would have no, or very limited, decision-making rights in relation to most Council assets. This would fundamentally reduce and undermine the role of local boards and adversely impact responsiveness at the local level. It would also likely overload the governing body’s work programme.
[87] More importantly, in the context of what is essentially an exercise of statutory interpretation, such an approach would be contrary to the s 17 legislative scheme and in particular the s 17(2)(a) principle that the decision-making for non-regulatory activities should presumptively be the responsibility of local boards.
[88] It is for these reasons I am satisfied there was no error in the governing body’s exercise of its s 17 powers in respect of Chamberlain Park. It properly directed itself to the operation of the section; that there is a presumption of local board responsibility which is displaced only where decision-making on an Auckland-wide basis would better promote the well-being of communities across Auckland. This “two tier” structure was evident in the Council’s allocations which gave effect to the clear legislative intent.29
[89] The governing body also correctly approached its allocation on the basis that the factors contained in s 17(2)(b)(i)-(iii) are not mandatory, but rather are principles which operate as a guide to the governing body’s assessment of whether decision- making on an Auckland-wide basis would be preferable. Additionally, there was an acknowledgement that in certain cases the benefits of a consistent or co-ordinated approach would be outweighed by the benefit of reflecting the specific needs of the local community. In that regard the governing body properly appreciated the flexibility implicit in s 17.
[90] Moreover, while in its LTPs the governing body was predominantly concerned with activities, the further analysis undertaken in respect of park assets emphasises that the Council was influenced by the activities conducted by the assets when deciding whether particular activities required decision-making on an Auckland-wide basis. It compiled a list of parks which should be allocated to the governing body because decision-making on an Auckland-wide basis would best promote the well- being of communities across Auckland. Plainly the Council was of the view that many parks, while they may well deliver benefits to communities outside the local board
29 See Local Government (Auckland Council) Bill 2009 (36-2) (select committee report) at 4-5: “the nature of the functions the local boards ought to have responsibility for should include the range of activities that communities expect to be delivered by local government … we expect the local activities that will be the subject of local board plans would be likely to include the operation and development of local facilities, including sports and recreation centres, swimming pools, and parks”.
area, were nonetheless best managed by the local boards. The governing body arrived at this conclusion after considering the s 17(2)(b) criteria and undertaking workshops and formal meetings. Those exercises helped identify what types of activities undertaken in parks and open space should be within the control of local board and governing body decision-making, respectively.
[91] The essence of Mr Long’s submission is that a considerably more detailed and in-depth analysis should have been undertaken by the governing body before making its allocation decisions. I do not accept that the governing body was required to undertake such a comprehensive analysis. That would require the application of a granular assessment of each of the innumerable parks and recreational facilities dotted across wider Auckland. Such a task is neither contemplated nor required by s 17.
[92] The decision to allocate non-regulatory decision-making to the local board is consistent with s 17(2), particularly when viewed against the backdrop of a succession of reviews and consultation undertaken by the governing body and its consultants.
[93]For these reasons this cause of action must fail.
The AELB, Chamberlain Park and the background to the second, third and fourth causes of action
Introduction
[94] The second, third and fourth causes of action all relate to decisions made by the AELB and the processes it followed in arriving at those decisions. In summary, Save CP’s claim is that the AELB failed to collaborate and consult with other local boards under s 16(3) of the LGAC, predetermined its decision and failed to consult on the case for change.
[95] Before considering each of these claims it is necessary to return to the background, some of which has already been discussed.
Early steps
[96] Peter Haynes and Shyrel Burt have given affidavits covering their involvement relative to Chamberlain Park. Dr Haynes has been the chair of the AELB since November 2010 and Ms Burt is a principal policy analyst at Council.
[97] It was the Longdill and Associates report which, in 2011, alerted the Council to the pressure on sports fields in the Auckland region. Discussions between the Council and the AELB led the former to examine the local board’s capacity to accommodate sports fields which, in turn, led the AELB to examine the open space at Chamberlain Park as part of its wider review.
[98] Dr Haynes accepts that during 2013 Chamberlain Park was on the AELB’s “radar”. It learned that from 1 July 2013 the lease over Chamberlain Park would expire and from that time it would be managed by the Council. At a meeting of the AELB on 4 December 2013 Sharon Rimmer, the Sports and Recreation Partnerships Manager for the Council, discussed Chamberlain Park but, it seems, this was only in the context of the golf course’s existing use.
[99] However it seems inevitable the AELB was aware that with the change of operational rights, an opportunity was created to include Chamberlain Park in its consideration of the AELB area’s open space needs. At some point in 2013 the AELB asked Council policy officers to consider what other uses of Chamberlain Park might be possible. Dr Haynes says this was not because the AELB had made its mind up, but rather because the local board wished to have a proper understanding of the options for open space within its boundaries.
“Part 1 repeals requirements for local authorities, firstly, to consider the views of interested or affected persons at four specified stages in the decision- making process. … It will be up to the council to decide how many times it will consult.”
[262] Mr Long points out that in its February 2014 report, O’Connor Sinclair stated at the first phase of the Chamberlain Park project, it would:100
“… review a number of key documents (some to be identified by research) to gain an overall understanding and appreciation for the activities and characteristics of Chamberlain Park. This will include the following:
…
·Documents on current use and participation at Chamberlain Park;
·Reports prepared by Auckland Council on utilisation, maintenance and financial reports for the golf course[.]”
[263] He submits the subsequent failure to adopt this recommendation and carry out this sort of procedure at the preliminary stage of the AELB’s investigation was a “fundamental error”.
[264] Were s 78(2) still in operation, that submission might have been more successful. But it is plain that the repeal of that subsection was intended to provide more flexibility to local authorities when discharging their s 78(1) obligations. In and of itself, failure to undertake that process is not an error provided the approach taken by the AELB generally satisfied s 78(1). I address that question below, but note at this stage, as I have earlier observed, it is factually incorrect that the AELB had no understanding of the current situation at Chamberlain Park.
99 (16 November 2010) 668 NZPD 15539.
100 Affidavit of Richard Quince, sworn 10 August 2017, at 163.
[265] Likewise I do not consider R (Stirling) is apposite in that at no stage, until a decision in principle to redesign Chamberlain Park was made on 22 April 2015, did correspondence by the AELB misleadingly imply there were no possible alternatives. The first round of consultation, on the draft AELB plan, stated the AELB wished to “review the use of Chamberlain Park and consult with the community on options for maximising its recreational use”. That language left all options available at that stage. The AELB was merely seeking consultation on “options”, and undertaking a “review” of the park’s use. Nothing in the language of the draft plan and the pamphlets suggested there were no possible alternatives to change. At most it indicated a predisposition for change.
[266] Ultimately, I am satisfied that the approach followed by the AELB complied with its obligations arising under the relevant provisions of the LGA, namely ss 77 to 79, which Mr Long focused on. There were two relevant consultation stages; one before the adoption of the AELB Plan, which was on the draft plan and one following its adoption during the review of Chamberlain Park.
[267] I have already discussed in detail the factual basis which supports this conclusion, particularly in respect of the third cause of action; predetermination. Thus what follows is simply an abbreviation of my earlier factual analysis.
[268] The first consultation phase involved the delivery of a summary of the draft plan to every household and business in the local board area. The summary was also found at public areas. It noted the AELB wished to review the use of Chamberlain Park and consult with the community on options for maximising its recreational use, and called for submissions. A large number of submissions were received. These were compiled into a summary of submissions which identified key themes. Relevantly, participants used this opportunity to promote the retention of the status quo; this led the summary report to record that the review of Chamberlain Park was a “much debated initiative”.
[269] The second phase occurred after the Local Board Plan was adopted, and once the review of Chamberlain Park had been confirmed. At numerous workshops, meetings, an open day and via an online survey, interested and affected persons were invited to comment on what activities they wanted to see at Chamberlain Park. This included questions about the provision of golf. Again, interested parties took the opportunity to express their desire for the retention of the status quo.
[270] This was not a case of the AELB adhering to a preferred option without engaging the community in its decision-making process. Rather, by conducting the two consultation phases discussed, I am satisfied the AELB complied with ss 77 to 79 by:
(a)Seeking to identify all reasonably practicable options for the achievement of the objective of its decision: This was easily discharged by holding two rounds of consultation and meeting with interested parties. The status quo option was identified multiple occasions through submissions made during consultation in response to questions framed broadly enough to invite such submissions. It should also be noted that the focus of s 77(1)(a) on reasonably practicable options is qualified by the words which follow, “for the achievement of the objective of a decision”. It was a matter for the AELB whether, having sought to identify all options via consultation, maintaining the status quo would achieve the objectives of its decision.
(b)Assessing the options in terms of their advantages and disadvantages: The feedback was the subject of summary reports and debate by the members of the AELB. They were also used to influence the next stage in the process (in the case of the first round informing what questions were asked at the second round and, in the case of the second round, informing what scenarios were put forward for Master Plan consultation).
(c)Giving consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter: The consideration
given to the views and preferences expressed is plain in the way the feedback from each round of consultation was noted and used to inform the next round.
[271] Generally, it must be remembered that compliance with ss 77 and 78 is, by virtue of s 79, a matter for local authorities in their discretion. They are to make judgements about the extent to which different options are identified and assessed, the degree to which benefits and costs are quantified, the extent of detail of information to be considered, and the extent and nature of any written record kept on compliance with these sections.101 These judgements must be largely in proportion to the significance of the matters affected by the decision.102 But they are for them, absent an identifiable error. For reasons already discussed I can identify no error in the way the AELB exercised its discretion in complying with ss 77 and 78.
[272] For completeness, this is equally true in respect of the way local authorities undertake consultation in accordance with the principles of consultation at s 82(1). Mr Long has not suggested any way that the approach taken by the AELB in its discretion to comply with those principles, failed to properly observe them, except in relation to the second aspect of this fourth cause of action which I shall shortly consider. Foreshadowing that analysis, I also do not consider there was any error in the approach taken by the AELB in respect of these principles.
Having an open mind: legal principles
[273] The requirement to have an open mind, the focus of the second aspect of the fourth cause of action, is contained in s 82(1)(e) of the LGA. Consultation that a local authority undertakes in relation to any decision or other matter must be undertaken in accordance with the principle that the views presented to the local authority should be received by the local authority with an open mind and should be given due consideration by the local authority when making a decision.
101 Local Government Act, s 79(1)(b).
102 Section 79(1)(a).
[274] As with the other s 82(1) principles, observation of these rests with the discretion of the local authority. It is what the local authority considers to be appropriate in the particular instance. But in exercising its discretion, the local authority must have regard to the matters in s 82(4), including: the requirements of s 78; 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 are known to the local authority; and the nature and significance of the decision, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in, the decision.
[275] As the Court of Appeal has observed, to have an open mind, the decision-maker must be “ready to change [its mind] and even start afresh”.103
Having an open mind: assessment
[276] In my view there are two considerations, which to some extent counterbalance each other, that in accordance with s 82(4) would have influenced the AELB’s exercise of its discretion as to how it went about consultation. The first is the fact that it would have had, even at the outset, a reasonable grasp of the views and preferences of the golfing community to the prospect of changes to Chamberlain Park. However, it may not have had a grasp of the diversity of persons who had an interest in Chamberlain Park. The second consideration is that from the outset, it would have been clear that from the perspective of these communities, the likely impact of any changes to Chamberlain Park would be substantial.
[277] In order to consult in accordance with the principle in s 82(1)(e), the approach taken by the AELB required these to be taken into account. Mr Long submits it did not because, from the start, the AELB did not approach its discussions with an open mind. He submits having an open mind is an ongoing and continuing obligation.
[278] I do not accept that submission on the facts. For the same reasons set out in some detail in relation to the third cause of action, I do not consider that at any stage,
103 Wellington International Airport Ltd v Air New Zealand, above n 87, at 675.
until its decision in principle on 22 April 2015, the AELB closed its mind to the possibility of retaining the status quo.
[279] But more specifically, in relation to s 82(1)(e), I consider the consultation processes adopted by the AELB accorded with the principle that it should have an open mind and give those views presented to it due consideration. It also reflected the two considerations noted earlier, with special focus given to the views of the golfing community. The submission process pinpointed, if the AELB was not aware already, the diversity of those persons committed to the retention of Chamberlain Park in its present configuration. Mr Quince prepared a submission on behalf of Chamberlain Park which emphasised this and pointed to the number of casual golfers who utilised the park’s facilities. He also spoke at various AELB workshops. Moreover, once the AELB Plan was adopted, the status quo was not off the table and, in fact, the desirability of its retention was emphasised at various workshops, meetings and in feedback. It was also noted by Council officers in their reports and, as already discussed, motivated two members of the AELB to propose an amendment to include the status quo as an option for consultation on the Master Plan.
[280] In the context of what was a lengthy, multi-layered decision-making process, the AELB maintained an open mind until, in its discretion, it considered it was appropriate to advance matters and shift focus to what the redesign of Chamberlain Park should look like. That decision did not fall foul of s 82(1)(e).
[281] The AELB duly considered all relevant matters in arriving at that decision, including the strong interests of certain communities. Inevitability a proportion of the submitters were bitterly disappointed including those with a strong interest in maintaining the status quo. But that is a not uncommon consequence of decision- making. The decision here was made by an elected body exercising its functions on behalf of the wider community in a democratic fashion.
Conclusion
[282] I have determined that the AELB discharged its decision-making responsibilities which arise under ss 76 to 82 of the LGA properly and in accordance with law.
[283] It is appropriate to conclude by reference to the paradigm common law principles of consultation as set out in Wellington International Airport Ltd.
[284] The interest groups represented by Save CP were told of the proposed review and were provided with multiple opportunities to express their views. This they did both orally and in writing. The approach taken by the AELB was neither perfunctory or a mere formality. It engaged in a robust process of consultation where multiple interest groups participated in an open and at times hotly contested debate concerning the best use of Chamberlain Park. Moreover, and crucially, consultation must not be equated with negotiation.104 The process embarked on was not one which had as its object arriving at a solution which represented some form of consensus. There was no requirement for the AELB to accept the views and preferences or even reach a compromise with those who sought the maintenance of the status quo.
[285]For these reasons this cause of action must also fail.
Result
[286]The application for judicial review is dismissed.
[287]The interim orders shall expire 20 working days after the date of this judgment.
Costs
[288] The parties did not address me on the question of costs. The Council, as the successful party, is presumptively entitled to an award of costs. I invite the parties to consult on the question of costs with a view to agreement.
[289] If the parties are unable to agree and if the Council seeks an award, I direct that memoranda of costs not exceeding three pages (exclusive of appendices) are to be filed:
(a)by the Council within 20 working days of the date of this judgment; and
104 At 676.
(b)by Save CP within 10 working days thereafter.
Moore J
Solicitors/Counsel:
Mr Long, Auckland Ms Hollings, Auckland Mr Cowan, Auckland
Ms Anderson, Auckland Ms Quinlan, Auckland
8