Justice. What a sweet word that is and how heartening it is to witness such a resounding example of it. Justice Geoffrey Venning’s decision to throw out the resource consents granted to Ports of Auckland by the Auckland Council to extend the Bledisloe container terminal with wharf extensions nearly 100 metres, is more than justice – it is a liberating breath of fresh air for Aucklanders fed up with the high-handeded behaviour of the Auckland Council. The resource consents, presaging a major harbour reclamation, were not only not publicly-notified, they were kept secret by council management from the public, from the councillors – even from the mayor.
Justice Venning ruled the consents should have been publicly notified on two counts.
- the technical applications should have been ‘bundled’, meaning they therefore would have been considered under the more restrictive ‘discretionary activity’ which requires notification.
- Under the ‘controlled activity’ rule of the Regional Plan Coastal used to authorise the wharf extension, the ‘special circumstances’ (s.95 (4) RMA) provisions of that rule were simply ignored. The Judge found there were ample grounds to treat this application as a special circumstance, given amongst other things the very high public interest.
All Aucklanders owe a debt of gratitude to Urban Auckland and its generous backers that successfully took the council and port company to court on behalf of the public, and also to ‘Stop Stealing Our Harbour’ the group that organised the mass public opposition in the streets and with full-page newspaper ads. We should also acknowledge the role of the NZ Herald. The monolithic power of the super city means that the free press has become an even more important safeguard for the people of Auckland.
As a politician I feel personally vindicated because the Judge’s finding in regard to ‘special circumstances’ is exactly what I argued from the beginning. It would be fair to say that since the story leaked out on 12 February it has not been one of the most pleasant periods that I have experienced in my time in local government.
The morning the story broke (I hadn’t at that stage read it), I was bemused to hear a senior planner justifying secret consents by referring to the “ARC coastal plan” (meaning the Auckland Regional Plan Coastal). The “ARC Plan” refrain was soon taken up as a thinly-disguised taunt by certain other councillors. As the councillor for Waitemata & Gulf, a longtime environmentalist and the former chairman of the ARC, coming on top of my dismay at the secret consents and the council’s back down on harbour reclamation, the ‘ARC’ taunting certainly added insult to injury – as it was meant to. When the mayor Len Brown in desperation also resorted to it, it was the final straw and I gave him a well-deserved public bollocking.
Interestingly when I made enquiries of officers for the legal grounds for the consents, I was given photo-copies of relevant pages of the Regional Plan Coastal – with the sentences the officers thought relevant, helpfully highlighted. But I was intrigued to see that while the ‘special circumstances’ condition was a part of the ‘controlled activity’ rule (25.5.28) the officers used – it was not highlighted. Was this deliberate I wondered? Or did the officers just not ‘see’ it because of a mind set springing from the council’s own institutional bias against notification. Of course the council planners were working with the port company lawyers not only to get the consents through on a non-notified basis, but to keep those consents secret. Council officers in these situations nowadays work through contracted commissioners – so-called ‘independent commissioners’ – who almost always act on the officers’ recommendations.
As Justice Venning pointed out:
On the face of the decision of both Commissioners, it appears that the principal reason they decided special circumstances did not exist is that the extension was a controlled activity, and an expected form of development. In coming to that view I consider the Commissioners have misdirected themselves. The relevant rule in the Coastal Plan itself contemplates that even though the activity might be controlled there may still be special circumstances justifying public notification in accordance with s 95A(4) of the RMA.
Justice Venning also thought it appropriate to comment on the interaction between council planners and one of the two ‘independent commissioners’, Ms Macky, referring to an email from a council consultant planner, one Ms Halpin to the council lead planner Ms Valentine. Judge Venning wrote:
‘I also note that the evidence before the Court suggests Commissioner Macky had some issues with the notification decision recommended to her. Ms Valentine asked Ms Halpin to speak to Ms Macky. There is a record of Ms Halpin reporting to Ms Valentine after speaking with Commissioner Macky that:
‘I have spoken with [Commissioner Macky] and she is all good. She really appreciated being able to talk through the application with me as she was having a wee bit of concern around notification! She is feeling much more comfortable now – phew! Give me a call and I can enlighten you further.’’
‘Phew!’??? Like Justice Venning, I will leave readers to draw their own conclusions.
There is a lot more to come out about this affair. The council has allegedly spent an incredible $500,000 of public money in legal fees defending itself – which itself raises a number of questions. Will officers argue to spend yet more money to appeal or will they accept the judgement that they were plain wrong? In regard to the related issue of the council’s Unitary Plan back-down on harbour reclamation, the public needs to know why a senior council planning manager advised the council members (on 12 February the same day as the secret consent story broke) that no legal advice could be found that would support the council’s 2013 decision to make harbour reclamation ‘non-complying’ and for that reason no council planner could or would support it, when in fact council officers were in possession of legal advice which not only supported the non-complying policy but advocated extending it?
While the directors of the Port company will have to pay the consequences for their foolishness and arrogance that has badly damaged the credibility and long-term interests of the Port Company, they no doubt imagined in their narrow, blinkered way, they were being ‘commercial’; but the cardinal culpability for this fiasco lies within the Auckland Council. I believe there will be consequences and these may go on for some time – up until and beyond the next election. Justice Venning’s historic judgement I believe will cast a very long shadow.
This article is featured in the July issue of Ponsonby News.