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District Court of New Zealand |
Last Updated: 27 September 2016
IN THE DISTRICT COURT AT AUCKLAND
CIV-2011-404-002492
IN THE MATTER OF the Local Government Act 2002 AND
IN THE MATTER OF an application for an injunction under
section 162 of the Act
BETWEEN AUCKLAND COUNCIL
Applicant
AND THE OCCUPIERS OF AOTEA SQUARE
AUCKLAND CENTRAL BEING THE OCCUPY AUCKLAND GROUP INCLUDING BUT NOT LIMITED TO ANDREW HENDRIE AND PENELOPE MARY BRIGHT AND OTHERS Respondents
Hearing: 8 and 9 December 2011
Appearances: Mr R S Burns and Ms Efwerson for the Applicant
Mr R Mansfield for the General Assembly of Occupy Auckland
Ms P M Bright representing herself
Mr Rainsfield associated person
Mr Minto for the Mana Party
Mr Carolan of the United Trade Union Party
Judgment: 21 December 2011
JUDGMENT OF JUDGE D M WILSON QC
AUCKLAND COUNCIL V THE OCCUPIERS OF AOTEA SQUARE DC AK CIV-2011-404-002492 (21 December 2011]
Background: how and why did the occupation of Aotea Square occur?
[1] On Saturday 15 October 2011 a protest march of about 30001 people wound
its way up Queen Street in the City of Auckland to Aotea Square where a meeting was held about 4pm. The start of the occupation which has become known as "Occupy Auckland" or "Occupiers Aotea Square" began when people started erecting tents at about 7 pm on the only grassed areas of the Square.
[1] The occupation was inspired at least in part by earlier well publicised
occupations of Wall Street in New York, San Francisco2 and other places around the world.
[1] The Occupy Movement is a global movement which its supporters see as a
revolutionary wave of demonstrations and protests around the world sharing a number of common goals and values. The Global Occupy Movement shares "techniques of civil disobedience in sustained campaigns involving strikes demonstrations marches and rallies as well as the use of social media to organise communicate and raise awareness in the face of state attempts at repression and censorship"3.
[1] The Occupy Movement believes that the harsh reality the majority struggle
with on a daily basis is created and upheld by an elite bourgeoisie they call "the 1%" consisting of wealthy business people, bankers and individuals holding positions of power in local and national governments. In their view, the majority of the population, the "99%", are denied freedoms, prosperity, and the trappings of modern life by the acceptance of a system which fails to benefit or reward the hard work of the majority4.
The nature of the occupied space
[1] Auckland is New Zealand's biggest city with a population in excess of 1.3
million people. Aotea Square was established alongside the Auckland Town Hall as
Affirmation of C A Egerton (Chris Glen) 6 December 2011, paragraph 3.4. 2 Both from 17 September 2011: Affidavit N L Verdouw 22/11/2011at [4]. 'Affirmation Chris Glen, paragraphs 1.5 and 1.6.And generally see paragraphs 1.5 to 1.33. Affirmation Chris Glen, paragraphs 1.7 — 1.9.
a central gathering area for the citizens of Auckland. It has been the scene of cultural, entertainment, corporate, private and public gatherings ranging from the simple pleasure of city workers sitting on the grass eating their lunch to spontaneous gatherings of friends and acquaintances. Protests are held here. Jugglers, street musicians and simple strollers enjoy the space. The area is generally paved with seating available for the public. The three terraced grassed areas of Aotea Square, until occupied by the respondents, were small green oases in the centre of the City to which its citizens had free resort.
The nature of the occupation
[6] Occupy Auckland gave no prior notice of intention to occupy Aotea Square
and sought no consent from, or accommodation with, civic authorities, nearby occupiers or indeed the citizens of Auckland City in general. Occupy Auckland was of the view that it was exercising its rights to freedom of expression, peaceful assembly, and association under the New Zealand Bill of Rights Act 1990 and did not need to ask. The group has erected many tents and established the facilities of that occupation. There is a media tent, and marquees for the kitchen (which raises no concerns of health and safety), and the action spaces for gatherings for entertainment, group discussion, peaceful assembly and protest.
[6] The group on the whole has promoted itself with success as crime free, drug
free and alcohol free. It has sought to provide opportunities for reflection on the international economic system generally, and within New Zealand itself.
[6] The police have regarded the occupiers as a peaceful protest group. On the
evidence before me I accept that description as indeed does the Auckland Council.
[6] From the start the three grassed areas have been dominated by tents.
Estimates of the number of tents erected on the first day vary from 356 to 707. A number of the people associated with the Occupy Movement have camped there continuously. Others have come and gone. It seems that most tents have been empty
5 Affirmation of Chris Glen, paragraph 3.15. 6Affirmation of Chris Glen, paragraph 3.15.
7 First affidavit of Natalie Louise Verdouw sworn 22/11/11 para 7.
overnight and would have the same effect as road cones reserving the space for the respondents' use the next day.
[10] This aerial photograph of the Occupation was taken on 8 November 2011 8:
[11] On 10 November 2011 there were 104 tents and gazebos on site.9
[11] The internal government of the Occupy Movement in Auckland developed gradually. It operates generally by means of general assemblies. It purports to be a leaderless group. Important decisions can only be made by general assemblies which have been held three times a week" in a form of "participatory democracy". The approach is to initially seek 100% agreement".
8 This is (as can be seen on the exhibit note) exhibit "8" to the affidavit of N L Verdouw sworn 22/11/11. The building on the right hand side of the photograph is the Auckland Town Hall. Other photos showing the site on other dates are at "2" of that affidavit.
9 First affidavit of N L Verdouw sworn 22/11/11 aerial photo in exhibit "2". 10Affirmation of Chris Glen, paragraph 1.34.11
Affirmation of Chris Glen, paragraph 1.35.
Auckland Council recognises right to protest, but reserves its legal rights
[13] The Auckland Council, while at all times specifically reserving its legal rights, from the outset recognised the right of Occupy Auckland to protest. It established an early dialogue with the occupiers to address the health and safety, water and toileting issues created by the Occupiers occupying a space which was not designed to cope with people camping there. The Council wished to negotiate and reach consensus with Occupy Auckland for an end to the Occupation. The dialogue on both sides was conducted in the main with mutual respect.
[13] The General Assembly of Occupy Auckland formally acknowledged on 3 November 2011: "that for Auckland Council an exit strategy from Aotea Square is a priority."12
[13] Initially Occupy Auckland's web site indicated that the occupation would last 6 weeks. Then it indicated it would depart after the final of the Rugby World Cup which took place in Auckland on 23 October 2011. It did not. Then it said it would not depart before the general election on 26 November 201113, implying a review then. The occupation continues to this day.
[13] On Friday 4th November 2011 Occupy Auckland published a Declaration of the Occupation"14 which included the following phrase:
We are here, and here we stay, till we have finally roused the 99% from its long and troubled slumber.
[14] It continued to invite further communication and liaison with Auckland Council officials including Natalie Verdouw, the Risk and Assurance Manager at the Auckland Council, and indeed the Auckland City Mayor Mr Len Brown. But there never was an agreement on an exit strategy.
12 The quoted phrase appears in its published "Statements agreed by the Occupy Auckland General Assembly" on 3 November 2011.The full text of this statement can be seen as exhibit '3' to the affidavit of N L Verdouw sworn 22/11/11 and see paragraph 16.
13 That is part of the public statement of 3/11/11. See footnote above.
14 Affidavit of N L Verdouw sworn 22/11/11 para 17 (b). The full text of the website entry is exhibit
[18] Mr Edgerton (who prefers to be known as Chris Glen) a member of the Occupier's Council liaison team deposed on 6 December 2011:
Occupy Auckland has resolved to continue with its protest and remains committed to maintaining a peaceful and purposeful occupation.15
[18] He also affirms that while the Facebook page for the Occupy Auckland event limited the duration of events for six weeks, Occupy Auckland had no intention to set an end date. Alternate venues suggested by the Auckland Council of the large open green park places, Victoria Park and Albert Park, were rejected by Occupy Auckland as unsuitable and to an extent marginalising.
[18] Auckland Council made formal requests to Occupy Auckland to meet compliance requirements relating to ongoing peaceful co-existence (never a problem apart from the odd drunken citizen), reasonable limits on noise, remaining liquor and drug free, meeting requirements of food safety, wastewater disposal, solid waste disposal, toilet usage and general safety, removal of all waste and the protection of the waterproof membrane beneath Aotea Square which prevents water damage and water leaking into the underground Civic Car Park.
Who has the power to regulate activity in Aotea Square?
[18] The Auckland Council was created on the establishment of the Auckland Super City by the Local Government (Auckland Council) Act 2009. As from 1 November 2011, Aotea Square was vested in the Auckland Council, which holds legal title to it,16 as successor to the Auckland City Council.
[18] The Auckland Council has the power to regulate activity in Aotea Square because the Local Government Act 2002 gives it power to make bylaws to protect the public from nuisance, promote and maintain public health and safety and minimise the potential for anti-social behaviour in public spaces including Aotea Square which are under the control of the Council.
"Affirmation 6 December 2011, paragraph 4.1.
16 The certificates of title to Aotea Square are annexed to the Affidavit of N L Verdouw dated 22/11/11 see paragraph 18 and exhibit "6'.
Action to enforce bylaws
[23] The Council has applied for an injunction in the District Court1 7 to restrain the respondents from breaching the provisions of an Auckland Council bylaw governing the use of public places, in this case Aotea Square. Bylaw No. 20 - Public Places 2008 prohibits, amongst other things:
activity causing an unreasonable interference with the comfort and enjoyment of the public;
(ii) damaging public property;
(ii) overnight camping;18
(ii) leaving unattended material in a public place;19
(ii) using amplified sound equipment;20°
(ii) putting up structures;21
(iii) putting up posters;22 and
(iii) undertaking protest events without a permit.23
The Council's claims of damage or loss
[24] The Council expressed its concern regularly to Occupy Auckland about ongoing damage and other losses which it saw as arising from the occupation.
[25] The Council referred to damage to grass, native trees and the subsurface membrane. It also referred to the loss of public use of Aotea Square and losses through cancelled bookings. Fuller details of these claims are set out in a schedule to this judgment.24
17 The power to issue an injunction in such a case is vested in the District Court by virtue of section 162 of the Local Government Act 2002.
L8 Continuous since 15 October 2011.
19 Including unoccupied tents.
20 For music and other events. Occupy Auckland acknowledged this concern and undertook to work towards maintaining a comfortable noise limit. See exhibit D2.
21 This includes the stage and marquees. OA agreed not to erect any permanent structures. See exhibit D2.
22 Like the ones affixed to the perimeter fence.
23 There is no suggestion that any permit for this protest was ever sought.
24 Appendix 1.
The respondents' reply
[26] Mr Mansfield submitted that if Auckland Council was genuinely concerned about the damage to the grass, it would have moved earlier to evict the occupiers. Mr Mansfield submitted that effectively all damage to the grass had already been sustained and that continuation of the occupation was unlikely to change that position significantly or at all.
Discussion
[26] Auckland Council never acquiesced in grass damage. It signalled its concern for the grass from the outset and sought co-operation to minimise damage while it sought an agreed exit date. Those are valid reasons for not enforcing removal without first trying to reach consensus.
[26] Mr Mansfield submitted that paid corporate use of Aotea Square scheduled to take place during the occupation did not proceed because they did not want to run their event alongside the protest and not because Occupy Auckland had refused access. He submitted that Occupy Auckland had not even been consulted nor been asked to accommodate the corporate events.
[26] This submission suggested that Occupy Auckland would have facilitated corporate use. But it also illustrated the point that Occupy Auckland regarded itself as having some sort of proprietary or exclusive right to the grassed area in Aotea Square.
[26] He also submitted that as soon as they became aware of the waterproof membrane Occupy Auckland had undertaken to ensure that tent pegs were not long enough to penetrate it and that there had been no evidence of damage.
[26] This is a good point the validity of which cannot be known until a full appraisal has taken place once the tents have gone. Only then will the full extent of damage and loss be quantifiable. I find as a fact that substantial loss and damage has occurred as a result of the occupation.
[32] The respondents do not expressly deny that any of these bylaws are being breached although they submit that the claim for damage to public property is excessive, and I infer that any interference with the comfort and enjoyment of the public is minimal having regard to the purposes of the protest.
Limits on the power to make bylaws?
[32] The power to make bylaws is not unfettered. Bylaws must be consistent with the New Zealand Bill of Rights Act 1990 ("the Bill of Rights")25 and local authorities must assess the implications of the bylaw on the rights provided for in the Bill of Rights.
[32] The respondents and particularly Ms Bright understandably relied on section 155(3) of the Local Government Act 2002 which provides:
155 Determination whether bylaw [made under this Act] is
appropriate:
•••
(3) No bylaw may be made which is inconsistent with the New Zealand
Bill of Rights Act 1990, notwithstanding section 4 of that Act.
[32] Accordingly, because of s 155(3), a bylaw may not be made which is directly inconsistent with the Bill of Rights Act, but a bylaw may be valid where found under s 5 of that Act to be: "subject to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
The New Zealand Bill of Rights Act 1990 ("Bill of Rights")
[32] Section 3 of the "Bill of Rights" provides that the Act applies only to acts done:
(a) By the legislative, executive, or judicial branches of the government
of New Zealand; or
(b) By any person or body in the performance of any public function,
power, or duty conferred or imposed on that person or body by or pursuant to law.
Clearly the Auckland Council is a body to which subsection (b) applies
[37] Effect on other laws:
Section 4 of the Bill of Rights sets out its effect on other enactments:
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(a) Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
[38] Justified limitations:
Section 5 provides:
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The rights relied on by the respondents
[39] The respondents rely on certain freedoms provided for in the Bill of Rights which are as follows:
[40] Sometimes the expressions of these freedoms may lead to a degree of discomfort for other citizens but will not on that basis alone be constrained or prohibited by law.
[40] In Wakim and others v New Zealand Police 29 the High Court upheld appeals against conviction for disorderly behaviour when the appellants noisily disrupted a tennis match involving an Israeli who had once served in the Israeli armed forces. The disruption was part of a demonstration against the activities of Israel's military in Palestinian territories. The Court held that disruption to a spectator's enjoyment of a sporting event 'is not the same thing as disruption of public order"30. The case follows a series of recent decisions demonstrating that the exercise of freedoms enshrined in the Bill of Rights will not lightly lead to convictions being upheld for public order offences.31
Appearances for the Respondents
Mr Carolan: United Trade Union- a named party
[40] Mr Carolan explained that he represented the United Trade Union. He was aggrieved that his union had been named in the proceedings when other trade unions were not even although their members were also amongst the occupier group. Union members comprising large numbers of city workers who amongst others, he said, supported the occupier group's position.
27 Section 16.
28 Section 17.
29 Auckland High Court CR1 2011-404-093 Judgment of Heath J, 10 November 2011.
3° At [34].
31 See for example Brooker v Police [2007] NZSC 30; [2007] 3 NZLR 91 (Supreme Court of New Zealand), and Morse v Police [2011] NZSC 45.
Discussion
[43] There is no reason to doubt what Mr Carolan had to say but nothing he said was relevant to the issue of whether a permanent injunction should issue in this case.
Mr John Minto: Mana Party-a named party32
[43] Mr Minto of the Mana Party supported the objectives of the occupied group. Mr Minto submitted that essentially the action by Auckland Council had been taken because the action of Occupy Auckland had "clearly annoyed" Council officials. He pointed out that the behaviour of the Occupy group had been very respectful and that since they occupied a very small footprint of Auckland City their rights in a democratic society should allow for that.
Discussion
[45] I infer that Mr Minto is submitting that the Council's actions were motivated by spite because Council officers were "clearly annoyed". No such proposition was put in cross-examination. There is no evidential basis for it. The real issue is whether the Council's action is justified. The latter point is at the heart of this case and I deal with it in the discussion of Mr Mansfield's submissions which were more developed.
Ms Penny Bright-named party
[43] Ms Bright took a leading part in the hearing on her own behalf She filed a notice of opposition on the grounds that the making of a permanent injunction would breach the respondents' rights, and legally conflicts with section 155(3) of the Local Government Act 2002.33
[43] By leave she filed a late affidavit in the case. She cross-examined Ms Verdouw and made detailed submissions.
32 Neither he nor Mr Carolan filed any document or evidence.
33 I deal with that submission of law separately.
[48] She referred in closing submissions, as she had in her affidavit, to her long career as protester and activist and to various steps taken by her to advance the cause of the interests of the 99% and to call to account the 1% who in her view have undue influence on public bodies at a policy level.
[48] She made the point that the Council must know she held political views contrary to the Government by producing during her closing submissions a number of banners she had made. They were of a political nature which Occupy Auckland had displayed. They were critical of the National and Act parties in the run up to the New Zealand general election.
[48] Hence, Ms Bright submitted that the Auckland Council was motivated by unlawful political discrimination in seeking a permanent injunction to require the respondents to vacate Aotea Square.
Discussion of Ms Bright's case
[48] Assuming in her favour that she had given the banner information in evidence rather than in submissions, it was incapable of proving on its own that the Council was motivated by unlawful political discrimination.
[48] Although she was the prime mover in having the Council's principal deponent Ms Verdouw made available for cross-examination and cross-examined her at length Ms Bright did not put to her the proposition that the Council was motivated by unlawful political discrimination.
[48] Ms Verdouw deposed that the Auckland Council had no intention to prevent protest about matters of interest to the members of Occupy Auckland. The Council's objection was to the place and the method because the tents' domination of the grassed areas of Aotea Square denied free access to those areas to other members of the public, and was causing damage and loss.
[54] The fact that the allegation was not put to the Auckland Council's witness counts significantly against the weight that I can attach to 4.34 I do not accept Ms Bright's assertion that she was entitled not to ask that question because Ms Verdouw would not be aware of it.
[54] I find that there is no evidence that the Council was motivated by unlawful political discrimination against Ms Bright or the other Occupiers.
Submissions by Mr Rainsfield
[54] Mr Areta Rerekau Tanara Motu Marto" Uhuuhu Rainsfield was a person associated with the Occupy Auckland Movement and therefore entitled to be heard. He had filed a document which I found largely unintelligible. He was given leave to speak as an associated person and clarified his position. His sole point against the making of the permanent injunction in this case was that the Supreme Court had yet to rule on whether existing 'statutory state law' was valid and that accordingly this hearing should not proceed until the Supreme Court had ruled. I understood the argument to rest on the grounds of Maori sovereignty since he identified himself as a "Tangata whenua 0 Te Motu supporter whom as the native and indigenous people of Aotearoa New Zealand have been the most Destruct-fully affected by the British Subject and its immigrant support."35
Discussion
[54] I explained to Mr Rainsfield that I am required to apply the statutes and bylaws as passed by the relevant authorities and that the case law which binds me gives me no discretion to hold such statutes invalid on these grounds.
[54] The Courts are subservient to Parliament and must apply an Act of Parliament in the terms in which it has been enacted:36
34 Evidence Act 2006 section 92.
35 Document filed 7 December 2011 one of two page 4's paragraph 1.1.
36
Kohu v Police (1989) 5 CRNZ 194, affirmed in R v Fuimaono (CA 159/96, 24 October 1996) and
Warren v The Police (High Court, Hamilton, AP 133/99, 9 February 2000, Penlington J).
[59] It is not open to the Court to go behind what has been enacted by the legislature, and to inquire how the enactment came to be made, whether it arose out of incorrect information or, indeed, on actual deception by someone on whom reliance was placed by the legislature. The Court must accept the enactment as the law unless and until the legislature itself alters such enactment, on being persuaded of its error. 37
[59] I accordingly decline to adjourn this hearing pending the outcome of an unspecified case coming, if at all, at an unknown date before the Supreme Court.
Affidavit by Awatea Hawke on behalf of Tangata Whenua
[59] Ms Hawke is a descendant of Ngati Whaatua Ki Orakei, who are mana whenua and regard themselves as kaitiaki of the area where the occupation is taking place. They support the occupation. She is an associated person in her own right.
[62] She deposes that Te Ropu Tono play a:
constant role in shaping and influencing customary practice within Occupy Auckland to more thoroughly integrate, celebrate and accept Maori, indigenous and minority voices and tikanga. Te Ropu Tono whenua meets regularly and openly to discuss new processes and directions for the occupation.38
[63] And further:
The women of Te Ropu Tono, in addition to the vociferous debating that is the equal right of every occupier, organise and guide processes of karanga, waiata, and ringawera. Our wahine act on the Council liaison team, in legal planning and in conflict resolution. For 55 days we have occupied Aotea Square. Our processes are still evolving, but Tangata Whenua intends to guide that evolution for the good of all.39
37 Hoani Te Heuheu Tukino v Aotea District Maori Land Board Berkett v Tauranga District Court [1992] 3 NZLR. 206 at 214.
38 Para 3.1.
39 Paras 3.3 and 3.4.
Discussion
[64] I quote from her opening statement:
Ki mai koe ki ahau
He aha to mea nui o tenei ao?
Maku e ki atu.
He tangata, he tangata, he tangata4°
[64] The Court must weigh in the balance the rights of all people not solely those of the occupiers. The contributions Ms Hawke and the people she speaks for have made are admirable and could go to the ultimate issue of whether an injunction should issue but for the fact that there is no indication that occupation is essentially part of that contribution.
Mr Mansfield's closing submissions41
[64] Mr Mansfield made his submissions on behalf of the General Assembly of the occupiers of Aotea Square. He described this as an important case which went well beyond fact to the message which Occupy Auckland seeks to send to the community. He said that the Auckland Council were seeking to constrain Occupy Auckland in the exercise of the rights guaranteed to them by the New Zealand Bill of Rights as to freedom of expression, assembly and association.
[64] He submitted that those rights should not be constrained to a point of being meaningless on the basis of a city bylaw. He submitted that marginalised people should be able to speak with the power of one voice and to gather together for that purpose. He posed the question how long should they be entitled to exercise those rights and submitted that that should be long enough to effect the change they seek.
4° If you ask me what is the most important thing in the world? I will reply, people, people, people.
41 Mr Mansfield in accordance with the fine traditions of the Bar appeared for most of the respondents pro bono. I record the Court's appreciation of his part in this case.
He said that fundamental change does not happen without such peaceful protest action.
[68] He submitted that Occupy Auckland had not denied the use of Aotea Square to other people. He said that 'after all' this was public space designated for public use and was designed to house community events. It was an ideal place for political views to be expressed. He said Occupy Auckland accepted and respected the rights of other groups to be heard and was acting inclusively by welcoming everybody to their events. He pointed out, and I accept, that there was no evidence that anyone had been told not to enter Aotea Square or the grassed area upon which the tents are erected.
[68] He submitted and I accept that any public disturbance arising during the occupation was not caused by Occupy Auckland but by drunk citizens abusing the occupiers. He submitted that the loss of small areas of grass in the public place like the Aotea Square was a small price to pay to uphold the important rights being exercised by his clients. He said if the Council was serious about the harm to the grass then one must ask what is the reality of that exclusion given that both of the areas suggested by the Council as alternative sites for the protest, namely, Albert Park and Myers Park were close by and were also grassed.
[68] With respect, this submission ignores the fact that Aotea Square is in the central part of the City immediately alongside the Town Hall and that the three grassed areas there provide a rare small green oasis in the centre of the City.
[68] Both Myers Park which is about 200 metres up Queen Street from Aotea Square and Albert Park, which is much larger and is a similar distance away, are very extensive grassed areas. The occupation of any one part of either would not prevent the rest of the very extensive grassed areas being used.
[72] He said that a photograph produced in
evidence42 showed that part of the area which had been
surrendered by "concession" from Occupy Auckland on one of the grassed
rectangles was
being used by some members of the public during the latter stages
of the occupation.
[73] In making the submission Mr Mansfield no doubt had in mind part of the extensive affirmation that he filed on behalf of his clients. Mr Glen affirmed that:
Occupy Auckland had come up with the idea that the tents and fences on the front section could be removed to encourage/enable a larger open green space. I have complied with this request believing this would help to recommence communications and negotiations in good faith.... We sacrificed our own space and squeezed tents together so that personal space is very limited and we have reduced the fencing at the front which has taken away a platform for signage. Also some members of the group see this as a symbolic defeat in that land is being conceded to the Council43.
[73] In relation to the Rugby World Cup Mr Glen put forward his concerns to the Auckland Council "regarding the encroachment of the fence zone on the occupation." He continued "I was also concerned that if a fence was erected this would create a physical and psychological barrier"44.
[73] Mr Glen deposed that "OA was not given notice" of an art exhibition and interactive installation set up in Aotea Square event by the Auckland Council. He goes on:
This event will run from 6 December until 24 December 2011. This event visually marginalises OA and blocks the view of OA from Queen Street. With music from 9pm until midnight OA's ability to prepare protests and hold events is obviously impacted. OA is surprised and disappointed that they were not informed of this development which will obviously and directly interfere with the OA protest45.
[73] These passages (particularly those I have underlined) in Mr Glen's affirmation assert rights to exclusive use and control over the occupied spaces which are at odds with the submission that people are free to use the spaces. They also assert art expectation that the Council would give advanced notice to Occupy Auckland of any proposed use which would compete with the requirements of Occupy Auckland. I infer that Occupy Auckland expected a courtesy from the Council which it had not extended to the Council before it occupied Aotea Square.
[73] I infer that people are welcome to participate so long as they share the goals of the Occupiers but that other users whose views are inconsistent with those goals
43 Affirmation of Chris Glen paragraphs 3.117 and 3.118. 44 Op cit paragraph 3.54.
45 Op cit under the heading 6 December 2011.
should ask the Occupiers first. The expectation of a request to the Occupiers for accommodation is a barrier to normal public use and casts doubt on the genuineness of the claims that all are welcome. The public space has become private space.
[78] The real position has been that the rectangular areas of grass in Aotea Square have been more or less completely dominated with tents and other belongings of the Occupy Auckland group. With respect to Mr Mansfield it is unrealistic to say that this area is open for use by members of the public. The photograph shows people in the 'conceded' grass area but no one is able to use the tented area in that way.
[78] Occupy Auckland suggests that people who might like the grass have the alternative of sitting on seats around the parameter of the concreted area of Aotea Square or perhaps walking two or three hundred metres to Myers Park or Albert Park in order to accommodate the occupation. A "go use another park" alternative for the public so the occupation can proceed was rightly rejected in the Occupy Toronto case.46
[78] In that case, the Ontario Superior Court of Justice raised the question how to live together in a community and how to re-share common space. The Court said:
We must all bring humility to our dealings with our fellow citizens as a consequence of "the rule of law", we all must live subject to some rules — we are not unconstrained free actors 47
[78] The Court upheld a trespass notice issued by the City of Toronto to the Toronto Occupiers as constitutionally valid so that it might be enforced.
[78] Mr Mansfield submitted that the Toronto case could be distinguished on the basis that there the Occupy Groups had held the land. I do not agree that that is a point of distinction. Occupy Auckland hold the grassed areas of Aotea Square. He also submitted that unlike in other cases it was clear that there had been dialogue between the occupiers and the Council and other corporate and other interests
46 See Batty (op
cit) paras 112,113.
47 Batty v Toronto (City),
Decision of the Ontario Supreme of Justice, Judgment 21 November 2011,
paragraph 1.
surrounding Aotea Square although he accepted that that dialogue followed the occupation. Clearly this occupation occurred without consultation with anyone.
[83] Far from there being any significant factual point on which the Toronto decision can be distinguished. I find the facts, and the issues to be strikingly similar.
[83] The approach of the Ontario Court is not binding but is instructive in New Zealand because the Canadian charter of rights and freedoms is the precursor to the New Zealand Bill of Rights Act on which the occupiers of Aotea Square base their case. As with the Bill of Rights the charter states that limits can be placed on individual actions so long as they are such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[83] Mr Glen affirmed that following consultation with the General Assembly of Occupy Auckland he was requested to make an affirmation on this matter on behalf of the members of Occupy Auckland." It is therefore with respect, surprising to have counsel advance from the bar that there had been no resolutions supporting Mr Glen's affirmation that "Occupy Auckland has resolved to continue its protest and remains committed to maintaining a peaceful and purposeful occupation"49. The submission also overlooks the declaration of 3rd November 2011:
We are here, and here we stay, till we have finally roused the 99% from its long and troubled slumber.
[83] This gives some insight into the sort of shadow boxing which the Council officers have had to deal with. The example does not stand alone. Ms Bright and Mr Hendrie were two of the people with whom the Council spoke regularly because they were designated as Occupy Auckland's Council Liaison team.
[83] Mr Hendrie expressed concern to Auckland Council about developments within Occupy Auckland and left the occupation. Mr Glen criticised Mr Hendrie's conduct from as early as 15 November 2011 as inconsistent with Occupy Auckland's objectives but the Council were not told his role as Council liaison had ceased.
48 Affirmation of Chris Glen,
paragraph 1.3.
49 Affirmation of Chris Glen,
paragraph 4.1.
[88] Ms Bright submitted that the Council had shown bad faith by taking Mr Hendrie's advice on developments at face value. In her view Ms Verdouw should have 'checked and double checked' whether his advice of no progress on an exit date following the General Assembly of 28 November was correct. This proposition might have had merit if in fact Occupy Auckland had resolved to end the occupation. But it had not and the point has no substance.
[88] Occupy Auckland asserted that the Auckland Council was not entitled to deal with its Council liaison team because it knew that those people had no power to bind the general assembly. All they would undertake to do would be to go back to the general assembly and get instructions from it.
[88] Given the history of no progress in settling an agreed exit date, and since even at the date of hearing there had been no resolution to leave, it is patent that the information Mr Hendrie gave was correct at the time and has remained correct. The attack on process was without merit and was a smoke screen for the real point that the Council was right in its assessment that there would be no voluntary exit. That being the case, the Council had no alternative but to apply for a permanent injunction so that the Court could decide.
Did the Council conceal its intention to go to Court?
[88] Mr Mansfield submitted that the Council had acted improperly because it had hidden from Occupy Auckland its intention to take court proceedings if Occupy Auckland did not advise a clear date to exit from Aotea Square. This submission with respect, fails on the evidence which satisfies me and I find shows that the Council explicitly advised Occupy Auckland at a meeting of 25 November 2011 of its intention to go to court if the General Assembly did not resolve to end the occupation at its next meeting on the Saturday.
[88] Ms Verdouw deposed that the Mayor had given a clear message to Occupy Auckland at the meeting on 25 November that if there was no progress Council would pursue its legal options including trespass orders and a Court hearing.
[93] The relevant passage in the Council's text on behalf of Mayor Len Brown on Monday 28 November 2011 to Chris Egerton , the person who filed the affirmation on behalf of Occupy Auckland, states50:
We said that if there was no progress that Council would be progressing its legal options including trespass orders and a court hearing.
[93] Ms Bright did not use the notes Ms Verdouw saw her making of the meeting on 25 November 2011 as a basis to contradict this evidence. Ms Bright throughout displayed a familiarity and some skill with court processes. I infer that her notes of the meeting were not inconsistent as I have no doubt that if they had been she would have relied on them to cross-examine Ms Verdouw.
[93] I do not accept as genuine or credible the proposition put forward by Mr Glen and Ms Bright that the General Assembly on the Saturday could not address the Mayor's clear message because formal minutes had not been provided. Both were at the meeting with the Mayor and would have heard the message I have found he gave. Their function was to bring the Council's concerns to their general assembly. Furthermore, the point has no validity on another basis namely that Occupy Auckland was never going to vacate voluntarily in any circumstances.
[93] I accept Ms Verdouw's evidence on this point supported as it is by the text of the email of the 28th and by the long history of no progress on an exit date. The result is that I reject the proposition that the Council concealed their true intentions.
[93] I do not accept Mr Mansfield's submission that the swearing of supporting affidavits on 22 November ahead of the dead-line was indicative of underhand tactics. I find that bearing in mind the length of the occupation already it was prudent for Auckland Council to put into train steps to prepare the injunction proceedings should those proceedings be necessary.
[93] Occupy Auckland's invitation for the Mayor to attend its General Assembly the following week to discuss the matter further in the face of the clear message given to its Council liaison team on Friday 25th November 2011 was simply a
50 See Appendix 2 for complete copy of Council's letter.
delaying tactic. Occupy Auckland never intended to leave and its failure to honestly advise the Council of this is disappointing in a movement which says it promotes good faith bargaining.
[99] The Council's alleged 'duty to talk' was also rightly rejected in the Occupy Toronto case as having no merit, no source in constitutional obligation and if imposed would effectively paralyse municipal government.51
Can fundamental rights be constrained by time?
[99] Mr Mansfield submitted that the Bill of Rights does not set a time limit for the exercise of its rights and that the Auckland Council should not decide how long people should present a point of view. He submitted that the Auckland Council were seeking to limit freedom of expression and freedom of assembly by placing a time limit on it and that the Court should not set a time limit which was unauthorised by the Bill of Rights or even by the bylaw which the City relied on. No authority was cited for this proposition.
Discussion on time
[99] I agree that there is no time limit prescribed by the Bill of Rights for the exercise of fundamental rights. This is for the very good reason that the relevance of time needs to be assessed on the individual facts of each case. Here, time could go to the reasonableness of the occupation and the Council's action in response to it.
[99] Further there is nothing in the Bill of Rights which gives the respondents the right to appropriate a significant portion of common public space for an indefinite period of time for their own use.
Assessing the admitted breaches of bylaws
[99] No one disputed that there have been and continue to be breaches of the bylaws that are relevant in this case. I have found the Council's claims of damage
and loss of revenue to be substantially made out.
Are the bylaws a justified limitation on freedoms enshrined in the Bill of Rights?
[104] A challenge to the ability of the former Auckland City Council to enforce its bylaws in a protest situation failed in Auckland City Council v Finau52
[104] The Council successfully sought orders requiring the defendant to remove all signs located at his residential property and that he be restrained from erecting any further signs in breach of a bylaw. An issue of the bylaw validity arose.
[104] The substantive issues in this case related to the reasonableness of the bylaw and, in particular, to whether Mr Finau could successfully invoke the BORA on account of unsustainable interference with the freedoms it recognises.
[104] The application for an injunction was made pursuant to a predecessor to s162 of the LGA.
[108] The Court found at para 70:
I am bound to give the bylaw a meaning that is consistent with the rights and freedoms contained in the Bill of Rights. Those rights include (s.14) that of freedom of expression, including the freedom to seek receive, and impart information and opinions of any kind in any form. Moreover, the subject matter being but a bylaw, any unreasonable interference with those rights arising therefrom must render same to that extent unreasonable and thus invalid.
[109] The Court went on to consider whether the bylaw in that case really restricted the freedom of expression of a residential property owner or occupier like Mr Finau and whether (if it truly did) whether, in all reasonableness, any restriction was demonstrably justified: para 82).
52 Auckland City Council v Finau Auckland District Court NP 3350/01 Judge Joyce QC judgment 1/02/2002. Contrary to the submission of Ms Bright, the fact that a year later a stay issued on the warrant of committal does not affect the validity of the substantive judgment.
[110] The Court stated:
[83] First of all, it does not seem to me that I need formal evidence to
recognise that there would be, and are, numbers of other ways whereby one such as Mr Finau could, and can, enjoy the freedom to express or impart his opinions.
[83] Mr Finau, like any other citizen, has the avenues of word of mouth,
letter writing, attendance at Council or Council committee meetings, calling or speaking at public meetings, distribution of pamphlets or papers, web page publication and encouragement of media intervention. And that is only to mention some of the more obvious possibilities.
[83] Thus, if the bylaw is upheld, there are still numerous and various
ways in which a citizen like him may express or impart information and opinions on subjects that concern or interest them. So are the particular limitations which the bylaw sets out to create such as require it to be held unreasonable in the sense (s.5 Bill of Rights) of being incapable of demonstrable justification in a free and democratic society?
[83] Quite to the contrary, and in my view, the really quite modest (when
regard is had to the overall scheme of things) limitations that the bylaw imposes are demonstrably justified. Indeed, Mr Finau's very activities here are surely a perfect illustration of a mischief requiring, for the greater benefit of the greater number, to be addressed. The extensive signage here (rendering his residential site more like a multiple advertising hoarding than a dwelling-place) demonstrates the potential for chaos in the absence of controls. The photographs bear ample witness to that.
[91] However, before reaching a final conclusion, I take a final and hard
look at the bylaw within the context of the Bill of Rights in order to "double check" whether, though otherwise reasonable, it should be held repugnant, particularly, to the Bill of Rights.
[92] 1 do that appreciating (Drew v Attorney-General [2001] NZCA 207; 18 CRNZ 465 at
[68]) that the proper approach is to determine validity by considering whether the bylaw, read in accordance with s.6 of the Bill of Rights, conveys a meaning (in the sense here of its effects and implications) consistent with the relevant freedom. In my view it obviously does. The degree of control is plainly justified. The impact on personal freedom is really negligible when the many remaining avenues for expression are brought to mind. The amenities sought to be protected are valuable ones.
[91] So, and for all of the foregoing reasons, I uphold the bylaw as
effective to control, in the manner therein written, signs such as those displayed by Mr Finau.
[emphasis added]
[111] I adopt with respect the same balancing hard-look approach.
[111] Judge Joyce QC's approach is consistent with the Oakes test, as formulated by the Supreme Court of Canada and accepted in New Zealand Courts.53. Here, s 5 of the Bill of Rights is in issue because an enactment inconsistent with the right, properly interpreted, is sought to be justified. The test has been considered in a number of New Zealand cases. Justice Blanchard said in Duff v Communicado Limited54 :
The key element of the Oakes test in this case is the requirement that the limit "impair the right or freedom as little as possible".
That requirement seems to be met by the test I have propounded. Fair and temperate criticism is protected. Only expression which would have a real likelihood of preventing a litigant from availing itself of its constitutional right of resort to the judgment of the Court, or is actually intended to do so, is limited. Thus the test is logically connected to its goal and does not affect harmless expression of opinion.
Elias CJ said in R v Hansen55:
[42] As I have already indicated, I think it is important not to collapse the s 5 assessment into the interpretation of the right. Where s 5 is however in issue because an enactment inconsistent with the right, properly interpreted, is sought to be justified, the approach taken by the Supreme Court of Canada in R v Oakes and the cases which have followed it is helpful. The objective sought to be achieved by the limiting provision must be of sufficient importance to warrant infringement of a fundamental human right. The limitation must be no more than is reasonably necessary to achieve the purpose. The objective against which a provision is justified cannot be wider than can be achieved by the limitation of the right.
McGrath J said in Hansen:
[203] Under the test applied by Dickson CJ in R v Oakes and later in R v Whyte, two central criteria must be satisfied to establish that any limit on rights is reasonable and demonstrably justified in a democratic society. First, the objective to be served by the measure limiting the right has to be sufficiently important to warrant overriding the constitutionally protected freedom. As Dickson CJ put it, trivial objectives, or those discordant with the principles of a free and democratic society, will not enjoy protection. As a minimum, an objective must relate to concerns that are pressing and substantial in a free and democratic society before they can be said to be sufficiently important to override the freedom.
53 R. v. Oakes [1986] 1 S.C.R. 103, and Commerce Commission v Air New Zealand Ltd [2011] NZCA 64; [2011] 2 NZLR 194 (CA).
54 Duff v Communicado Ltd [1996] 2 NZLR 89 (HC) per Blanchard J at para 101.
55 [2007] NZSC 7; [2007] 3 NZLR 1 (SC).
[113] Applying the Oakes Test56 I ask the following questions:
[113] Firstly, is the objective of the perceived problem that the bylaw seeks to address important and significant? I find that the maintenance and protection of public spaces for use by all is an important and significant duty of local government.
[113] Second, is the bylaw proportionate to that objective? This is to be gauged by answering the question whether the measure had a rational relationship with the objective. The bylaw seeks to regulate conduct but not absolutely. It simply provides the means by which consents can be sought to planned activity so that the Council can monitor the activity in the light of interests of the public at large.57 Thus the measures in the bylaw have a rational connection with and are proportionate to its objectives.
[113] Three, to achieve that objective did the measure interfere as little as possible with the rights or freedoms affected? Here the rights enshrined in the Bill of Rights are to freedom of expression, assembly and association. None of these activities are proscribed by the bylaws as such. The bylaw imposes and here I adopt with respect the apt words of the judgment in the Occupy Toronto case:58
[111] ...reasonable, tailored, minimal impairments on the expressive and associational rights of the Protesters and a reasonable balancing of the rights of all who wish to use the Park.
[113] The Bill of Rights does not contain an unrestrained right to camp where one wishes. I find that the limitation for use of public space which regulates that use in the light of the interests of citizens generally is a justified limitation in this free and democratic society. In that way the public spaces are more available for more of the citizens. The negative effect of constraining people from taking over and camping on public land not set aside for that purpose is a justified limitation on camping rights.
56 The Oakes test has
also been discussed in two journal articles: "Fundamental rights and the margin
of appreciation" [2010] NZLJ 424 by Grant Illingworth QC and "The Bill of Rights
and other enactments" [2007] NZLJ 112 by Hanna
Wilberg.
57 The Court in Batty came to the
same conclusion; see paragraph 95.
58
Batty at [111].
[118] I accept that the effect of allowing the enforcement of the bylaws will in fact impact upon the respondents' rights to freedom of expression, peaceful assembly and association. The issue is whether such infringement can be demonstrably justified in a free and democratic society.59
[119] I hold that the restriction on the occupation by camping impairs the rights or freedoms in Justice Blanchard's words in Duff "as little as possible"600 in the public good.
[119] There is no fundamental human right to camp in public places without a permit. It is not for the Occupy Auckland Movement to define the Bill of Rights guarantees about freedom of association of assembly and expression as a right to occupy effectively exclusively for our own interest the only grassed areas in Aotea Square.
Discussion and decision
[120] The Council seeks a permanent injunction to end the occupation of Aotea Square. The respondents say the occupation is their way of exercising their rights under the Bill of Rights.
[120] On the central issue raised by the respondents the applicant submits that to the extent that their rights to freedom of speech and association are impeded by the application of the bylaws that is a justified limitation in terms of the Bill of Rights. The applicant argues that the bylaws are in place to preserve Council owned or operated amenities for the benefit of all members of the community and to ensure that the activities of some do not operate to the detriment of the rights of others.
[118] I have found that damage both financial and intangible which has been progressively caused since the occupation commenced on 15 October 2011. It is clear, given the respondents' stated wish to remain, that the loss and damage will only end when the occupation is over and repair work and restoration can take place
59 See Batty at paras 77-79.
60 Duff v Comrnunicado Ltd [1996] 2 NZLR 89 (HC) per Blanchard J at 101.
and other members of the public can resume their unrestricted enjoyment of these grassed areas of Aotea Square.
[124] As was observed in the decision of the Ontario Superior Court of Justice the Occupy Auckland Movement has every right to protest.
[124] While Occupy Auckland proclaims its adherence to participatory democracy61 the evidence reveals that they do not practise what they preach. They did not do so when they decided to occupy Aotea Square. They did not ask those who live and work around Aotea Square and those who use it, or their civil representatives what they would think if the Aotea Square was to use the words from the Toronto decision "turned into a tent city." 62
[124] They say, as did the occupiers in Toronto, that the Bill of Rights did not require them to ask. They say that the Bill of Rights sanctions their unilateral occupation of Aotea Square. It is clear, and I find, that they intend to continue to occupy Aotea Square for an indefinite period of time, because they believe that the importance of their message justifies the way in which they convey it by taking over public property.
[124] Our Bill of Rights speaks of "reasonable limits" on guaranteed freedoms thereby signalling that common sense must still play a role — indeed a very important role — in that balancing exercise. Nor does the Bill of Rights remove the obligation on all of us in this country to share our common urban space in a fair way. 63
[124] I adopt with respect the words of D M Brown J with respect to the Toronto occupation:
The Charter does not permit the protestors to take over public space without asking, exclude the rest of the public from enjoying their traditional use of that space and then contend that they are under no obligation to leave."
61 As in the Toronto case.
62 Batty v Toronto City op cit paragraph 9.
63 Batty v Toronto City op cit paragraphs 9-15 inclusive.
64 Batty v Toronto City op cit paragraphs 9-15 inclusive.
[129] I am satisfied that the bylaw is a reasonable limitation on the respondents' rights of expression and peaceful assembly. Enforcement of the bylaw will not prevent the respondents from protesting or gathering or expressing their views. I am satisfied that the point has been reached when only the injunction sought will end the unreasonable interference with the rights of others to use and enjoy Aotea Square which the occupation has caused and the damage and loss caused by it.
[129] In the exercise of my discretion I grant the Council's application for a permanent injunction65 and order as follows:
The Respondents are restrained from committing breaches of Auckland Council Bylaw 20 — Public Places 2008, and in particular:
(a) Clause 20.2.1(b): carrying out an activity, on or in any public place, in a manner that does or is likely to unreasonably interfere with the comfort and enjoyment of the public generally or of persons who come within close proximity of the activity, material or thing,
(a) Clause 20.2.1(c): carrying out an activity, on or in any public place, in a manner that does or is likely to damage, deface, destroy, or remove any property or interfere with the surface of any land.
(a) Clause 20.3.1(g): in, on or over any public place camp or steep overnight, except in areas set aside by the council for that purpose. In this context, camping shall include the use of any vehicle whether or not it is specially fitted out for sleeping.
(a) Clause 20.3.l(l): in, on or over any public place allow any material or thing under their control to be placed or left unattended.
(a) Clause 20.3.1(q): place or use loudspeakers or other devices for amplifying and emitting sound, including for advertising any trade, business, entertainment or any other purpose.
(a) Clause 20.3.1(v): in, on or over any public place put up or erect any stall, booth, tent or structure of any kind.
(a) Clause 20.3.1(w): in, on or over any public place or affix any poster or advertising material on any surface or structure.
(a) Clause 20.6.1(c): no person shall in, on or over a public place: undertake street trading without a street trading licence issued by the council; undertake any street performance without a street
65 1 note that on the morning I am to sign this judgment the press reports that Occupy Dunedin has packed up its tents and abandoned the occupation of the Octagon in the centre of that city without waiting for formal court action. One of its people was seen mowing the grass on which the tents had sat. This action showed respect for the public to whom the Octagon is now restored. I trust that the grace attending that withdrawal will commend itself to the respondents
performance licence issued by the council; undertake any event without an event permit issued by the council.
The Respondents shall within 48 hours of service of this order:
(a) Cease residing from time to time in Aotea Square; and
(a) Remove all tents, marquees, sofas and other seating, kitchen and washing facilities, all other structures, posters and signage, and all other materials and things that they have erected and installed relating to the protest event. In the event that the Respondents cease residing from time to time at Aotea Square, but do not remove the materials and things associated with the protest event, then the Applicant's agents are free to do so.
Service upon the Respondents of this order is to be effected by any of the following means:
(a) Personal service on any one of the Respondents;
(a) Affixing a copy of the injunction to the fence surrounding the camp, at the main entrance to the camp;
(a) By reading the terms of the injunction to the Occupy Auckland General Assembly on one occasion;
(a) By posting a copy of the injunction or a transcript of its terms, on the website www.occupvauckland.org and on the Occupy Auckland Facebook page.
Dated at Auckland this 215t day of December 2011 at 10.00am.
D M Wilson QC District Court Judge
APPENDIX 1
DAMAGE AND LOSS
Abbreviations
MC
Aff CAT Aff KRT Aff LEH Aff NLV SAff NLV 2SAff NLV Aff SMB SAff SMB
memorandum of counsel for the applicant
affidavit of Carole Anne
Todd
affidavit of Kaye Rosemary Thomas
affidavit of Louis Edward
Hunter
affidavit of Natalie Louise Verdouw
supplementary affidavit of
Natalie Louise Verdouw
second supplementary affidavit of Natalie Louise
Verdouw
affidavit of Sharyn Marie Bramwell
supplementary affidavit of
Sharyn Marie Bramwell
Damage or Loss Alleged Cross Reference to Source
Square restricted by respondents' Aff CAT — para 11(a)(ii)
occupation of that area and the chain Aff SMB paras 6 - 8
fence applicant erected around
encampment. Office workers, students,
Tai Chi groups etc unable to use
grassed area.
presence of the respondents. Economic Aff NLV — para 116
loss of $7,950 for events already Aff SMB — paras 3 — 5, 10 — 14 & 28(a) &
cancelled. Potential lost opportunity (b)
costs $2,750 if other events scheduled SAff SMB — para 9
for November cancelled. Events
scheduled for Aotea Square & at The
Edge in December & sponsored at cost of $250,000 are affected by the
respondents' occupation.
& likely
to die. Tree Specimen Aff CAT— para 11(b)(i)
Company reported (see
2SAff NLV) Aff LEH — para 22 & 23 estimated cost of rectifying grass
is Aff NLV — para 116 $61,500
(GST exclusive). Extent of 2SAff NLV —
para 6(c)(i) & 8(a)
damage to grass & the irrigation system
unknown until tents removed.
estimated cost of additional
maintenance needed to improve
trees situated within campsite area is $4,240 (GST exclusive).
5. If waterproof membrane beneath grassed MC — para 1.5 area & remainder of Aotea Square Aff CAT — para I 1(b)(iii)
damaged by e.g. tent pegs or their use Aff LEH — paras 14, 15 & 18
of petroleum products, then Aff NLV — para 116
considerable repair costs. Also 2SAff NLV — para
6(c)(ii)
significant costs ($60,000 - $70,000) to locate suspected leaks.
Aotea Square in public events e.g. All Aff CAT — para 11(a)(iii)
Blacks' World Cup victory parade, a Aff KRT — paras 6 & 7
Police parade, the Santa Parade. Aff SMB paras 15 - 27
Further security hired for ABs victory
parade in case of conflict with
respondents. Closing of Queen St for 1
hour longer due to shifting of
ceremonial component of Charter
Parade to Town Hall thereby affecting
public transport, traffic flows, nearby
businesses etc
fencing around the respondents' AffNLV — paras 43, 80 & 116
occupation at its own cost — approx.
$400 p.w. As at 14 November $2,000
& increasing.
access to areas of Aotea Centre & to
protect protestors from the public (24
hrs& 7 days). As at 11 November
$46,332 & increasing.
water supply without the applicant's
consent & payment. Although the
applicant eventually turned off the
water supply on 2 November.
10.Due to respondents' abuse of the SAff NLV — para 28
applicant's staff, the applicant has had
to employ private process servers to
serve court documents
11.The estimated costs of clean up 2SAff NLV — para 6(b)
following evacuation of camping area is
approx. $5,180 for steam cleaning,
litter, removal of illegal dumping etc.
This cost is additional to other matters.
12. Possible damage to seating, litter bins & 2SAff NLV — para 6(c)(iii)
tree hardware — actual damage
unknown until area evacuated
APPENDIX 2
E
•
From: Conor Roberts
Sent: Monday, 211 November
2011 9:45
To 'chrls.egarton@gmail.com Mayor Ben Brown
Cc:
Natalie Verdouw; Councilor Penny Hulse; 'andrew.coster@police.govt.nz'; Waterpressuretigmail.com`;
Wo(Poccupyauckland.org'
Subject:
Re: Fwd: Requests to Occupy Auckland from Auddand Council
Dear Chris,
Thanks for your email. I am replying on Mayor Brown's behalf.
As you will note from Nittalie's email below, the agreed outcome from the meeting last week was that Occupy Auckland would discuss an exit date for otherwise) at your GA over the weekend and provide us with a response today.
We said that if there was no progress that Council would be progressing Its legal options Including trespass orders and a court hearing.
Unfortunately, today council officers were informed that OA intended to stay In the square indefinitely and would not be moving anywhere.
We would be happy to hear any update on your position in this matter.
Initial discussions signalled that OA wanted to be there until the election, which has now passed. We have also offered you a number of other options to move to - all rejected. Council has been happy to negotiate with your group, but there has been no movement on your side.
As you will be aware, Council Is concerned about the damage the ongoing occupation is causing to the square and the restrictions on use it is causing for other Aucklanders.
We remain of the view that Council has reasonably accommodated Occupy Auckland's freedom of speech, however the square needs to be returned to general public use.
Regards, Thle M tie L4c kJ:id
marked with the Meer G.:
relarred b In the annexed afikkroltaf Nactxtu. 1-4ack.A.c-c %kr c1..Zt.44,4
29/11/2011 Worn at
CLuatAancj
1111a7-.4 day ot0a0.mbar
2011 belay me
Adkliti".. Call& Qpia;1411x1;11110
Auckland
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