The High Court has agreed with incorporated society Urban Auckland that the Council and the Port company were in error when they decided they don’t need to consult Aucklanders to expand further into the harbour, here for the full judgement:
http://www.3news.co.nz/nznews/auckland-council-loses-battle-over-port-2015061918?ref=video#axzz3dUz4yI8c
It is important that the Council accepts this decision and furthermore firmly *encourages* ACIL and the Port company to do so too. The Council alone spent $500,000 directly on this case to defend their earlier poor decision. Clearly this is just a part of their spending on our behalf following the rogue path of our wholly owned Ports of Auckland Ltd. Somehow the Council legal team got captured by the Port’s view of the world and their role in it. I accept the Council has a responsibility to back their officers’ earlier position but enough is enough.
And enough is more that enough with the Port Company. It really is time to part with the governance direction of the current board. They seem to have had two big ideas; first to fight their employees, second to trick and fight their owner. In both cases the courts taken a dim view of their approach. Also in each case I have no issue with the general aim but it is the path chosen to pursue these goals that is clearly crooked and unwise. I support the port seeking to improve their opoerational productivity, and I support the port seeking to right-size its physical footprint. But in each case this board and management have chosen the most confrontational and devious means to try to achieve these goals. And have been found to be sneaky and duplicitous by the courts; in ways that we would abhor in a privately owned company, let alone one representing the people of Auckland. In his written judgement Justice Venning is clear in pointing out that the Ports’ strategy is not clever on any level, especially on one of fiscal prudence:
[188] To the extent that there will be further delay and cost to POAL it has to a degree brought that on itself in the way that it urged the Council to proceed on the non-notified basis in the knowledge of the reaction that was likely to engender. In doing so it took a commercial risk in proceeding in that way.
It shouldn’t come to this. Citizens should not have to take legal action against people handsomely paid to serve them. It takes a hell of an effort and is a vast distraction, and costs everyone a fortune. Board Chair Hawkins has said he would rather resign than not build these extensions. Well the High court has stopped the extensions…..?
There is a lesson here too for other organisations that may lose sight of the fact that they only exist as servants of the people, and not just as facilitators for particular special interest groups. For example NZTA’s habit of deciding what it wants to do in our name without any real consultation, except with those business interests it is close to, should take heed from this decision. The process around what is now called the East West Connections and the Kirkbride Rd intersection give much room for disquiet. But these are nothing compared to what is likely to erupt as the Agency proceeds with one plan for a new Waitemata harbour crossing without any kind of serious process to discover the people of Auckland’s view on all the options. Especially without a real search for innovative solution including options without adding any additional traffic lanes. For despite all the rhetoric around the urgency to ‘solve’ congestion this agency is still rushing to spend billions on traffic inducing mega-projects; the greatest generators of traffic growth and therefore congestion.
So many of the worst features of Auckland’s current infrastructure are the result of public officials or central government deciding what is best for the city without allowing sufficient wider input into these decisions. This port extension issue should be a warning that the people of Auckland will no longer put up with being left out of these decisions.
Links, especially for donations towards our legal case:
Urban Auckland and Stop Stealing our Harbour
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Patrick
It is an inconvenient truth but the provisions of the Port Companies Act expressly prohibit any involvement by the council or ACIL in the governance of the Ports of Auckland.
They (AC via ACIL) can control the board of directors of POAL, they are the ones who set the governance tone to the entire organisation.
Looking forward to that day.
Congratulations to Urban Auckland but will you now have to fight an appeal a la the Basin Reserve stouch?
The lack of imagination of NZTA is alarming. Time after time they seem to propose projects following the path of least intellectual resistance. Where’s the innovative design? Where’s the acknowledgement of induced demand as an actual thing? Surely it must be time for a cleanout of traffic engineers and designers in Wellington.
The judge’s ruling also shows that the SkyPath trust was wise, in retrospect, with their resource consent application for Skypath, to bundle everything related to Skypath together and do one huge “non complying” resource consent application as they did for the lot.
It was because of the “piecemeal” approach taken by POAL (and accepted by AC) that they lost this case.
Best news for along while. The original application process was a corruption of our proper process and laws by the Port and AC.
Now Len Brown has to decide the next steps and will we see his real colours.
A new publicly notifiable consent hearing or an AC In house rubber stamp consent.
And after that he had better work on getting the trains to be on time!
Why should Len Brown have to do anything Don?
The ultimate failure was in POAL, and in the council’s planning department for swallowing POALs dead rat whole, not the mayoral office. Their failings caused the judge to rule against the consents issued and processes followed to do so.
The mayor or any councillor can’t interfere in council operational areas like planning, there is a City Manager/Chief Executive who runs the council operationally, it is his job to fix it, if any fixing needed to be done.
So tell me again why should it be Brown’s fault or for him to fix?
Highly predictable decision. You don’t back your Council officers if they have made a call that is outside the law, in this case clearly outside the notification requirements in the RMA. Len Brown has screwed up big time here, though the people giving him legal advice should probably carry the can.
However, until the judge ruled yesterday, it was not considered “outside the law”, so the council was right to “back their officers”.
Continuing to “back their officers” by appealing the decision however would be a bad deal.
Again, explain how come its Len’s fault here?
I’m no Brown supporter but lets put the facts in context for once.
Just because some council planners made a bad call is that automatically the mayors fault?
Is he like some all seeing all knowing God? I don’t think so, and in any case by law the running of the city and departments in it such as planning is completely separate from the politicians – for damn good reasons.
The group that concern me the most, after the Ports’ Board, are the Council legal team. They along with the planners at the highest level advised the elected members that everything was above board and shipshape with the Ports’ trickery. They were wrong. They show every sign of having been captured by the Ports’ lobbying machine.
I am also disappointed that the Mayor and deputy Mayor gave into to the very thinly veiled threats from the Ports concerning the dividend paid to Council.
I expect heads at the Port Company. This narrow interpretation of their responsibilities and their insistence on confrontation and deviousness has been shown, yet again, to not be the Port Company’s nor the people of Auckland’s best interests. The architects of this policy now need to make way for people with better policy and more ethical processes.
Ah yes, the dividends from POAL to council, the 30 pieces of silver that make every Judas, well, a Judas.
The Legal team will say what you want them to tell you. And tax lawyers will tell you – all tax minimisations schemes are legal until IRD says they are avoidance schemes.
However, the law, can be a tricky beast, like Nick Smith is finding with his Housing schemes.
The Environmental law is unclear in some areas, and it takes case law, including all of the many examples that were cited by the Judge in his summary, to get a “consensus” via precedents of how to interpret the law.
Each on of those cited cases was one like the one above, its outcome further refines the boundary rules for all future cases.
So while losing the court case *is* a slap on the face, continuing to appeal the decision by POAL or AC will only turn a slight into a full on duel. A bad call to make for all concerned.
We are run by dummies in this country.
Greg N and Patrick
Facsinating. How can you hope to build a civil society by hailing the upholding of rules that suit you and ignoring those that do not?
The board of POAL, by law, serve at the pleasure, and discretion of their ultimate shareholder – AC.
Thats the law. Its not picking and choosing the laws we live by.
However, for the benefit of society, picking outcomes you want to happen over ones you don’t is not creating an uncivil society – we rely on governments of all ilk to exactly that.
And do it transparently. Its the lack of transparency which is the root of all these issues.
Greg
Unfortunately, and as I have tried to explain, what you say is not legally correct. The Port Companies Act expressly prohibits the Auckland Council from doing that.
The Council can influence the Port company through ACIL. Wait and watch.
All it would take is a Mayor with some spine. Phil Warren would never have tolerated this crap from a publicly owned ports company. The law would not have mattered to him he would have been down there throwing his weight around until they complied.
Patrick
Yes it might try but that would be illegal. i.e. behaviour no better than that of the POAL
ACIL can control who is on the board of POAL and who is not, including sacking the current board.
This is allowed and is legal, so whats your beef with that? No one is saying that ACIL or AC should control Port *operations* – just the board.
This sacking of boards and replacing them with “friendlier” one happens all the time in private companies and no ones frets about uncivil society resulting.
The central government does this all the time also.
Though in this particular governments case, it’s appears that competance and adherance to proper process is that the thing they wish to remove.
Happily I’m not a lawyer and don’t have to think like one, but I do understand natural justice and when you are the 100% owner of something and the people running it for you show themselves to unable to understand the whole of the job, and in addition pursue sneaky and sly practices that cost you and others time, money, and respect, I know there will be consequences. Exactly how is for others to determine.
I guess we won’t be seeing any of those larger cruise ships, and can expect a rise in cost of cars and any other items currently shipped through the port.
I wonder if the port will ask for any of its old wharves back?
Well the port have never shown that there aren’t plenty of other options for more efficient operations than the one plan they are bloody-mindedly pursuing… To say there are plenty of reasons to not trust them on this as on so much else is an understatement. They certainly have been threatening to deliver a poor result if they don’t get their way. I say they’ve had their chance and it’s time for fresh blood….
Other ports have implemented solutions called ‘parking buildings’ to park their cars on their limited wharf space. But it would be too much effort to drive our imports into one of these, apparently. Shift the port over to the right and give us our harbour back.
Well how much those cruise ships *actually*contribute is hidden as POAL won’t discuss that part. And we don’t have any independent council studies as the one Brown promised was put on the back burner so hasn’t been completed.
However what is known that in Christchurch, the estimated $40m cost of the new Cruise Ship terminal needed there was not going to covered by the fees Lyttleton port would be charging the ships, even over a decade or more.
And cruise ships won’t commit to more than a 3 year timeframe. So Christchurch could build a $40m terminal and find it unused in 5 years as Cruise Ships go elsewhere.
Cruise ships are simply not the money fountains that people think they are. they certainly are people fountains at times, but dealing with mass influxes at 3, 6 or even 10 thousand cruise ship passengers at once does put a lot of strain on the infrastructure as they all arrive at once and all leave at once, during AM and PM peak hours. They are very demanding and particular customers, that expect to pay a bottom end price for the services they buy.
So, we live in a user pays world, and if the cruise ships won’t pay a fair to use the port and its facilities, then frankly they can go elsewhere.
We already see the large cruise ships dock in Auckland, why would they stop coming just because we haven’t expanded the port? I don’t think a large number of parked cars is high on cruise riders list of must-see attractions.
A win for democracy. Shame it has to be delivered by the expensive justice system.
Greg
You make the point but don’t finish it. You observe correctly AC and ACIL are not allowed to control port operations, but suggest that can be got around by changing the board. The drafters of the law (which includes myself) weren’t that dumb. The law is drafted to stop exactly that happening.
So exactly who appoints the board of POAL? Themselves? ACIL?
Like Patrick said, Natural Justice demands that there be visible consequences for POAL’s failure to act properly here.
What form that takes remains to be seen, but there will no doubt be consequences.
They may attempt to hide behind law including those you say you helped draft, but any law can be overturned in the courts or changed, scrapped or ammended by Parliament.
I suggest that the next new government of the day will do exactly that, then where will POAL hide? It will find it has few friends left and even fewer places to run to.
Greg
ACIL appoint the board but can only appoint members who will achieve business objectives and disregard issues such as social amenity. Since AC has been illegally interfering in the operations of the board it will need to be very careful what it does next. I understand AC is already facing scrutiny over its actions.
Your beloved Act says: “The principal objective of every port company shall be to operate as a successful business”. It is the overarching requirement.
So, in supporting that purpose of the Port Companies to be a successful business, there are many ways to achieve that success, and a port company can be seen to be “successful” if the port generates a dividend of $1 or one of $1 billion.
However, how it responds to its controlling shareholder and how it acts as a good corporate citizen in being “a successful business” can be radically different, including whether it takes into account issues wider than those that directly make money.
It is this non monetary aspects of the POAL operations that are getting it into trouble.
While the Auditor General and the MoT may look at ACIL’s direction and appointing of the board of POAL, ACIL’s action so far has not been proven to be illegal – and your blank assertion that it is so thus merely your personal opinion, I think Mr Levin.
Shall we will let those who are charged with deciding on that point, make that judgement first shall we?
Or do you want to execute the prisoner as guilty before he pleads – as it seems you are wanting to do here?
Seems to me you have an equally uncivil regard for the law of due process with regards ACILs alleged behaviour as you accuse the rest of us of having with regards POALs behaviour.
Pot, meet Kettle.
Charles, I am interested to know: What happens if the best use of the ports assets is to sell the land for a higher value use? How does the Act facilitate the successful business outcomes in that scenario? Does the board have the power to wind up the business and sell the land? Based on what you have said above this is the only way it could happen.
Greg N, obviously what is illegal is just my opinion but I thought thats what we were doing here, whereas it seems to me you have descended into personal abuse so will have to let you continue this debate on your own from now on
You started this thread with this comment “It is an inconvenient truth but the provisions of the Port Companies Act expressly prohibit any involvement by the council or ACIL in the governance of the Ports of Auckland.”
You then call Patrick and myself out as uncivil for supposedly picking and choosing the laws we support, because of our stated positions on the ruling.
“Facsinating [sic]. How can you hope to build a civil society by hailing the upholding of rules that suit you and ignoring those that do not?”
Then you admit that yes ACIL can and does legally appoint the board (the governance) of POAL. And then you then accuse ACIL of acting illegally over the way it has interacted with POALs board.
The only *proven* illegal actions here so far have been those of AC’s planning department in granting non-notified separate consents for the work POAL requested.
No one I’ve read here said POAL acted illegally in acting on those consents.
By “slicing and dicing” the applications as noted by the Judge POAL have attempted to avoid any bundling of the applications together which would have required a notified consent process because of the most restrictive of the consents should have been the determining factor for the whole bundle of consents. Whether POAL legal team thus exerted undue influence on AC’s planning and legal team is yet to be shown/proven.
But that would not be illegal for POAL to do, just perhaps unethical, and the one of the many Law Societies ethics committees may be asked to rule on that matter regarding some of their members at some point, if proven.
But when the hypocrisy of your position is pointed out to you in your accusing us of “picking and choosing” which rules to uphold when you are guilty of the same crime you accuse us of – you say its personal abuse?
Really?
I am happy to discuss the rights and wrongs of all the parties here, but this is a facts based discussion forum, so if you have facts lets see them please.
Well it seems Charles doesn’t like being called a hypocrite.
Businesses including Port Companies need to comply with the law (including environmental law) and if they do not then they can expect its leaders to be replaced by people who will follow the law.
Matthew,
There is no reason why the port company couldn’t sell land if it facilitated its business and we all know it has a history of doing that. However winding up is the anithesis of carrying on so that would seem to be precluded.
Interesting. So there is no legal mechanism to realise the greatest value for shareholders, in that scenario. Seems like a flaw in the Act.
Matthew
The law can always be changed (once Key has a mayor he is prepared to talk to..)
Given the void between what central government wish and whom the population of Auckland are willing to elect I’m expecting that conversation may be a while off.
Its ridiculous isn’t it, that the owner of the port would have to go to parliament to get a law change in order to get the best return from their commercial asset.
That’s how crazy the super-city enabling laws were, yes.
Are you under the impression that Key will be in his job longer than Len Brown? I’ll take bets on that.
I don’t really see how this is a win for Auckland or a win for democracy. Maybe civil society, or at least a tiny portion of it. How sad that a special interest group went around wasting rates money on this whole fiasco. These protesters don’t represent me, or Auckland or even a tiny fraction of Auckland. Auckland Council does. They are voted to represent every single one of us and hold these CCO’s to account. Even if they are doing a crap job, it is still their job, not ours or any angry, tiny lobby group. The vast silent majority don’t care about a little tiny part of the harbour being reclaimed for economic use.
For the record I think the port land should be owned by AC and leased to POAL at market rates. They will sort out their space issues VERY quickly under those conditions.But that makes too much sense. I just don’t like protesters wasting public time and money on issues few people care about. Just like a few silly trees on great north road. People get mad about the silliest, little things and don’t lift a finger on serious issues like child abuse, climate change and the costs of obesity.