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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2009-485-1438
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application
of a judicial review of WCC,
CPC Decision, 4 June 2009
BETWEEN
BENJAMIN MORLAND EASTON
Applicant/Plaintiff
AND
WELLINGTON CITY COUNCIL
Respondent
Hearing: 8 September 2009
Counsel:
Applicant/Plaintiff in Person
C M Stevens for Respondent
Judgment: 14 September 2009
JUDGMENT OF RONALD YOUNG J
(Interim application)
Introduction
[1] This matter was heard
before me on 9 September 2009. At the end of the
hearing given the need for urgent clarity I advised Mr Easton and counsel for the
respondent that:
a) I refused the application for interim orders;
b) there would be a costs order in
favour of the respondent on this
application;
c) an order for security for costs would be made; and
BENJAMIN MORLAND EASTON V WELLINGTON CITY COUNCIL HC WN CIV 2009-485-1438 14
September 2009
d) I would give my reasons
as soon as reasonably possible.
[2] I now give my reasons for the above decisions.
[3] On 17 September 2009, the Wellington
City Council wishes to begin a public
consultation process on whether Manners Mall should continue to be a pedestrian
mall. Mr Easton
applies for an interim order to prevent that process.
[4] To change Manners Mall from a pedestrian mall requires a statutory
process
to be followed by the Wellington City Council provided for in the Local Government
Act 2002 ("the Act") (Part 6, Sub-part
1). A statement of the proposal to change
Manners Mall from a pedestrian mall has been prepared by Council officers. On
17 September
2009 the Strategy and Policy Committee are due to consider this
statement of proposal. If the statement is approved at that meeting
then public
notification of a statutorily mandated special consultative procedure will occur
(s 83). Formal consultation with the
public will then be undertaken which may
include public hearings before the Council.
[5] After the public consultation a report
will be prepared for the Strategy and
Policy Committee. It will be for that Committee to then consider whether they vote
to revoke
the pedestrian mall status of Manners Mall. If they do so then the decision
will go to the full Council for their consideration.
The earliest the Council could
possibly make a decision is 11 December 2009.
[6] Mr Easton's proceedings, which are difficult
to understand, seek the
following orders as set out in his statement of claim:
a) that the decision to restore the
"Golden Mile" in Report 4 of
4 June 2009 be quashed as invalid and the Community Outcomes of
September
2005 held to prevail;
· that any costs against the applicant sought by counsel for
Council on a successful application be reversed;
· turn back to the "Wellington Love Manners Mall"
campaign to cover the costs of that campaign; and/or
b) that the A C Nielson survey of 9 January
be quashed as irrelevant to
the report for decision.
[7] Mr Easton has now sought an interim order: s 8 Judicature
Amendment
Act 1972. The purpose of the interim order is to stop the Strategy and Policy
Committee from considering the statement
of purpose at its 17 September meeting
which may trigger the special consultative procedure identified as necessary before
consideration
of changing the status of Manners Mall can be undertaken [4].
Substantive proceedings
[8] Mr Easton's complaint in his substantive proceedings relating to Manners
Mall
seems to be that because the trigger for the process occurred at the meeting of
4 June 2009, and in his submission what occurred
there was unlawful, then
everything that follows will be tainted with that unlawfulness. Part of the proposed
plan for the "Golden
Mile" required a reconsideration of the status of Manners Mall.
Amongst a number of recommendations to the Committee counsel officers
recommended (at the 4 June meeting) to the Committee that they "Agree to the
revocation of the "pedestrian mall" status of Manners
Mall and note that a special
consultative procedure will be required and reported back to Council".
[9] The wording of the recommendation
was inappropriate. What in fact was
being asked was not for the Committee to agree to revoke the pedestrian mall status
but a recommendation
that the Committee agree to a process which would consider
whether such a change in status was appropriate.
[10] At paragraph
5.4 of the report for the same meeting Council officers
illustrated that in fact they understood that there was a statutory process
to be
undergone by the Committee and Council if they were to consider closing Manners
Mall as a pedestrian mall. At 5.4 the Report
said:
... Manners Mall was established by Council resolution to declare it a
pedestrian mall and restricted the driving
or parking of vehicles on it. Legal
advice is that revoking this status will require a special consultative
procedure
under the Local Government Act 2002. In essence this will
require Council to make a resolution that a special consultative
procedure be
commenced and issue a statement of proposal and summary of information.
This will provide an opportunity
to communicate clearly to the public about
the creation of new space in lower Cuba Street and how elements of the
overall
proposal will fit together. It was proposed to commence this process
in August 2002.
[11] The Minutes of the meeting of
4 June were subsequently correctly amended
so that the Committee:
8. Agree(d) to commence the revocation of the pedestrian
mall status
of Manners Mall and note that a special consultative procedure will
be required and reported
to Council to approve commencement.
Interim orders
[12] Having made those observations about the substantive proceedings I
turn to
the fact that this is an application for an interim order. The classic two step approach
to such an application is to firstly
ask whether such an order is necessary to protect
the applicant's position and if so, how the Court is to exercise its discretion
in
deciding whether an order as sought is appropriate. In exercising such a discretion
typically the relative strength of the parties'
cases, the status quo, where the balance
of convenience lies together with overall justice are relevant. In addition what the
effect of making such an order might be, especially as here where public issues are
concerned, may be important: Carlton and United
Breweries Ltd v Minister of
Customs 1986 1 NZLR 423.
[13] As I understand it, the applicant by this interim application wishes to prevent
the Strategy and Policy Committee from considering
and then, by a vote adopting,
the statement of purposes for Manners Mall at its meeting of 17 September 2009. If
the applicant is
successful this would prevent, until the hearing of the substantive
case on 28 October, the statutory process for the special consultative
procedure.
[14] This Council process is, as I have identified, the first step in the
commencement of public consultation regarding
a proposal to change Manners Mall
"pedestrian" status. The Act allows for and indeed provides for a process for
consideration including
consultation and decision making of such matters as the
continuing status of Manners Mall: (Sub-part 1).
[15] Mr Easton cannot
stop this process. The Council are entitled to invoke the
process and as long as they do so according to law the process is entitled
to continue.
It is, as the Act identifies, an important opportunity for the public to participate in
Council decision-making.
[16]
The proposed events of 17 September 2009 are no more than the beginning of
the process and the beginning of the public consultation
regarding the future of
Manners Mall. No decision can be made on the status of Manners Mall until, at the
earliest, 11 December 2009
when the matter is proposed to come before the City
Council after the public consultation process has been undertaken.
[17] If
the process used to arrive at the decision on 11 December is flawed then it
can be challenged. Initially through an appeal to
the Environment Court and
subsequently should that be appropriate through judicial review proceedings: s 296
Resource Management
Act 1991.
[18] The fixture date for Mr Easton's substantive case of 28 October is well before
any decision on the future of Manners
Mall although for the purpose of this
argument I am prepared to accept that an order would be necessary to protect the
applicant's
position. For reasons that I will give, I cannot see that there is any merit
in either the substantive proceedings or in the application
for an interim order.
[19] I assume, therefore, that the position to be preserved is to prevent any process
taking place at the
17 September meeting which would commence the special
consultative procedure under s 83 of the Act. What Mr Easton wants to do is
prevent
the Committee from considering even the statement of proposal. I therefore turn to
the grounds of the interim application
to assess the merits of that application and the
discretionary matters previously identified.
[20] I found Mr Easton submissions
both written and oral extremely difficult to
follow. I hope therefore I do them justice in this decision.
[21] Before I consider
each individual ground upon which Mr Easton says an
interim order should be made I make these observations. Firstly, Mr
Easton's
statement of claim as amended seeks relief in two ways. Firstly, it seeks an order
that the decision to restore the "Golden
Mile" in Report 4 of 4 June 2009 be quashed
as invalid. As I have previously identified there is no decision to restore the "Golden
Mile". Mr Easton advised that what was sought was the quashing Report 4. The
second ground of relief sought is the quashing of an
A C Nielson survey of
January 09 relating to the proposed changes to Manners Mall.
[22] The relief sought in the interim application,
preventing the Committee from
considering the statement of proposal, bears no relationship to the relief sought in the
statement
of claim. On that ground alone the application for interim relief should be
dismissed.
[23] Secondly, no statutory decision by
the Council or its committee has been
identified by Mr Easton, which could be the subject of a review. As I have
recounted
the "decision" of the Committee of 4 June was simply an agreement to
approve commencement of a statutory process. Such a recommendation,
does no
more than trigger the preparation of reports which will be for consideration on
17 September I consider is not a decision which
can be reviewed. On that ground
also the application for interim orders would fail.
[24] Thirdly, Mr Easton's original submission
was that the consideration of the
future of Manners Mall, which began some time in 2008 was in fact the statutory
special consultative
procedure identified in s 83 of the Act. If the s 83 procedure has
already been undertaken then s 296 of the Resource Management
Act 1991 would
prohibit any judicial review proceedings until the right of appeal to the Environment
Court was exercised. No such
right has been exercised. This would also mean that
an interim order was inappropriate.
[25] On the basis of any of these four
points I would have refused an interim order
on the basis that Mr Easton's substantive proceedings could not possibly have
succeeded.
[26] However I also now consider Mr Easton's submissions. I turn to the first
ground upon which Mr Easton maintained that interim
orders should be made.
Mr Easton states:
(a) establishes and commits commercial and legal environments with
applicable costs; difficult or impossible to reverse; and
[27] This ground seems to arise from Mr Easton's concerns about
the Council
advertising for tenders for the upgrade of the "Golden Mile". The Council
acknowledged it had invited tenders
to undertake the "Golden Mile" reconstruction
work. It is difficult to understand what this has to do with this particular litigation.
The tender documents make it clear that no decision has been made by the Council
to proceed with the work, the subject of the tender.
Thus, none of the tenderers will
be misled as to the true position. The Council is entitled to call for tenders prior to
the conclusion
of the consultative procedure. No doubt if the Council decides that
work is required on the "Golden Mile" then the parallel tender
process will give
them a speedy opportunity to complete the work.
[28] Mr Easton was also concerned that potential tenderers
had not been told
about this litigation and that somehow if he succeeded in delaying this process the
prospective tenderers could
sue him. It is difficult to see how such an improbable
situation could arise. However Mr Easton is free himself to tell the tenderers
about
his litigation. Mr Easton cannot somehow achieve immunity from other litigation by
anything that he might do before this Court.
The tender process is irrelevant to
Mr Easton's proceedings. This submission does not support any interim orders.
[29] Mr Easton's
second point in support of the application is:
Further confirms as unreasonable and unfair executive legal actions
commencing tender or possibly any other relevant exercise of statutory
power decision; and
[30] The second ground in
support of the interim order seems to also relate to the
cost of the tender process, which Mr Easton says may be wasted if the proposal
does
not go ahead. Mr Easton says he was concerned that the cost of the tender process
both from the Council and the tenderers point
of view would be wasted if an interim
order was granted. It is difficult to see how this has got anything to do with
Mr Easton's
case. However, how tenderers and the Council spend their money is,
subject to compliance with the law, up to them. There is no basis
to suggest the
tender process is unlawful. Point two is not a ground on which Mr Easton can
challenge the process.
[31] The
third point in support of this application for interim orders is:
Concretises an executive acting outside consultative
norms or for relevant
restraint and therefore outside its jurisdiction.
[32] The applicant seems to claim that the
work done by the Council, of gathering
information regarding the proposals with respect to the "Golden Mile", is somehow
improper
or somehow effects the legitimacy of the June 4 decision and the proposal
for the September 17 meeting.
[33] Ms Pennlington who is the Wellington City Council
Director of Strategy
Planning Urban Design, in her affidavit in these proceedings mentioned that the
Council began the process with
respect to Manners Mall by a briefing for Council
members and what is proposed for the "Golden Mile" This, as I understand it, has
already taken place.
[34] Further, on 9 September (now past) a public workshop was being held,
organised by the Council, by
a visiting UK expert for public spaces. His remarks
have relevance to the Manners Mall proposals and more widely to the "Golden Mile"
proposals.
[35] There is nothing in law objectionable with the Council undertaking these
tasks. The legislation does not
prohibit discussion in meetings and the like to
develop the Council and the publics' thinking about Manners Mall before the
Committee
considers the statement of proposal. These debates and discussions
provide further additional material to the public on the proposal
for Manners Mall. It
is not, as Mr Easton claims, somehow outside the statutory process.
[36] Point four provides:
Confirms
existing or other planned consequential actions do not preserve the
position of the applicants; community outcome; tendered
commercial
interests or other public funds.
[37] This point in support of the interim orders seems to relate to what Mr
Easton
claims are the contradictions between the Wellington City "community outcomes"
and the proposals for Manners Mall.
[38]
Section 91 of the Act sets out a process for determining "community
outcomes". The Act requires the local authorities to facilitate
discussion with their
community to identify what the community consider are the appropriate outcomes
for decision making relating
to their city. Once identified these community
outcomes are to be regularly updated.
[39] Section 77 of the Act sets
out the circumstances under which local authorities
are to take the community outcomes into consideration when making decisions.
In
particular, for example, s 77(1)(b)(ii) provides as follows:
77 Requirements in relation to decisions
(1)
A local authority must, in the course of the decision-making
process,--
...
(b)
assess those options by considering--
...
(ii) the extent to which community
outcomes would be
promoted or achieved in an integrated and efficient
manner by each option; and
[40] In addition, s 79 provides that it is the responsibility of the local authority to
make, in its
discretion, judgments about how to achieve compliance with s 77.
[41] Wellington has forty-five such community outcomes. Mr Easton's
case is
really focussed on taking one or two of these outcomes, for example, that Wellington
will be pedestrian and cyclist friendly,
and to claim the Council are somehow
obliged to follow or adhere to such an outcome in all decisions made regarding
Manners Mall.
[42] Mr Easton is mistaken in this submission at a number of levels. Firstly, the
only obligation of the Council is to take all
relevant community outcomes into
account in decision making. As I have said it is not simply a case of identifying one
or two such
outcomes. No doubt other community outcomes could just as easily be
used to justify the closing of Manners Mall. But in any event
the only obligation on
the Council is to take the community outcomes into account in the decision making.
Community outcomes are
not determinative in decision making.
[43] Further, there are no decisions here which would trigger the requirement to
take into
account community outcomes by the Council. All that has so far been
decided is to allow a statement of proposal to go to the Strategy
and Policy
Committee at its meeting of 17 September. No decision has been made other than to
put the statement of proposal to appear on the agenda. Accordingly the Council has
not
yet made a decision which would require it to take into account any community
outcomes.
Conclusion
[44] I consider therefore
the applicant's case is very weak indeed. There is no
detriment to the applicant in allowing the 17 September meeting from proceeding.
This is the beginning of a public consultation process about Manners Mall which
Mr Easton is entitled, as are all the citizens of
Wellington, to participate in and to
challenge. At the end of the process when the decision making is complete there are
rights to
appeal the Environment Court and possible judicial review.
[45] There is significant detriment to the Council, should I make
such an order.
The Council will be unnecessary delayed in the process of considering the statement
of proposal. The citizens of Wellington
will be prevented from participating in any
consideration of the whole of the "Golden Mile" redevelopment for an indeterminate
time. These observations also cover the balance of convenience and overall justice,
which strongly favours the City Council.
[46]
There are no grounds on which to grant any interim order here. The
application is refused. With respect to this
application there is no reason not to allow
costs in favour of the Council. I order costs on a 2B basis plus disbursements in
favour
of the Council against Mr Easton..
[47] Two further matters. Most of Mr Easton's substantive proceeding is dealt
with by me
in this judgment on his interim application. Mr Easton in his statement
of claim also asked for an order that the A C Nielson survey
be quashed. At some
stage the Council authorised a survey by A C Nielson to gage public opinion
regarding the proposed change to
Manners Mall.
[48] I cannot see how any Court could "quash" such a survey. If ultimately the A
C Nielson survey is taken into
account in the decision making and if somehow the
survey is flawed or if it is irrelevant or if it is relevant but the Council failed
to take it
into account in its decision making then that could constitute grounds for a judicial
review. I do not suggest by this
that there is anything at all wrong with the poll.
Certainly nothing has been brought to my attention to indicate there is.
[49]
I therefore cannot see how Mr Easton's application relating to the A C
Nielson survey could possibly succeed. I gave Mr Easton
notice at the end of the
oral hearing and I give him now notice that in my view these proceedings are
fundamentally flawed and cannot
possibly succeed. They are in my view a mish
mash of ideas that do not make a coherent case against the Council to prevent the
public
consultation process mandated by the Act.
[50] This brings me to the second point, the application by the Council for an
order
for security of costs. Mr Easton acknowledged he is impecunious. I have
already concluded the proceedings have little or no chance
of succeeding. In my
view Mr Easton is not pursuing these proceedings to support any public good.
Presumably the public good is,
as Parliament has identified, in a public consultation
process regarding changes proposed to Wellington City.
[51] Mr Easton
and the public will have an opportunity to make submissions with
regard to the proposed changes, a right of appeal from any decision
made exists and
finally once that is exhausted further proceedings in the High Court are possible.
[52] I am also conscious that
given Mr Easton's impecuniosity he will find it very
difficult to meet the security for costs in some suitable way. On an assessment
of 2B
costs for the hearing of 28 October 2009 the respondent estimates the costs would be
$28,000. They seek an order for costs
of $20,000.
[53] Acknowledging Mr Easton's impecuniosity but keeping in mind what I
consider to be the fragility of his case
I order security for costs in the sum of
$12,000. That sum to be either paid to the Registrar of the High Court at
Wellington or secured to his satisfaction.
[54] As I have
observed these proceedings have a fixture for 28 October.
Ordinarily it would be appropriate to stay the proceedings until the costs
are paid.
However in this case it seems to me appropriate to make an "unless" order. That is
unless the costs are paid or appropriately
secured before the hearing then the
proceedings should be struck out.
[55] The Council may be about to embark upon an expensive
public consultation
process regarding important proposed changes to the inner city of Wellington.
Council are entitled to know as
early as possible whether the challenges made by
Mr Easton will in fact derail any proposed special consultative process. A stay
of the
proceedings where security remained unpaid or unmet would unfairly hold these
proceedings over the head of the Council who
could never be sure when they would
be free of the challenge one way or another.
[56] I note that these proceedings challenge
only what occurred before the
meeting of 17 September and the process for the special consultative procedure. In
those circumstances
I consider an "unless" order as to security for costs is
appropriate.
[57] I therefore make the following order. The applicant
will pay to the Registrar
of the High Court at Wellington the sum of $12,000 or secure to the satisfaction of
the Registrar that
sum by Friday, 23 October 2009 as security for costs.
[58] If the applicant fails to pay or secure the sum of $12,000 in terms
of this
order by 5.00 p.m., 23 October 2009 then these proceedings will be struck out. I
have identified Friday, 23 October as appropriate
because while it is close to the 28th
it gives Mr Easton the maximum time to secure the money. It also takes into account
the fact
that Monday, 26 October is Labour Day and that the respondent is entitled to
some notice prior to the hearing as to whether this
case will be proceeding on
28 October 2009.
__________________________
Ronald Young J
Solicitors:
C M Stevens, DLA Phillips Fox,
Wellington, email: craig.stevens@dlaphillipsfox.com
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