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Why ratepayers shouldn’t have to pay for challenging the council

by Simon Woolf
This month I was prompted to write to Councillors and Officers in response to a Councillor requesting that the City Council seek costs, as a result of the Frank Kitts Environment Court Appeal decision.

My response was as follows:

“I do not support seeking costs against individuals or groups, who are our ratepayers, who are testing decisions in good faith. There are exceptions, where appellants are vexatious, and/or unreasonable. The Council prosecutes, defends, and/or appeals using ratepayers’ funds. But whether we apply for legal costs should be on a case by case basis. Seeking costs from our ratepayers should not be a deterrent to ratepayers testing our decisions in courts, which is usually an expensive process.

As you will all be aware, I am an advocate for qualified independent mediation as opposed to expensive litigation. I am aware that there was a failed mediation in respect of Frank Kitts Park.

It has got to a stage where many of our ratepayers feel it is very unfair and unreasonable that the Council has an unlimited resource in litigating cases, rather than seeking less confrontational, less adversarial and less costly solutions.

In regards to Waterfront Watch, they are a valuable lobby group, made up largely of volunteers. They have proven to be great advocates for our waterfront, and have played a large part in shaping and protecting a Wellington jewel.

I hope that when weighing up of the seeking of legal costs, a fair and reasonable approach is always taken.

I do support the request that Councillors should be made aware of the cost to Council, and ratepayers.”

In respect of the two separate cases re Shelly Bay and Frank Kitts Park, there are a number of issues which concern me about how the Council handled the initial decision-making. In both cases the engagement and consultation was poor at early stages. I have other reservations too.

However my biggest reservation is how we, the Council, are so quick to litigate, using sometimes disproportionate amounts of ratepayer resources and funds. $387,000 is a truck load of ratepayer money to defend an appeal case where a ratepayer advocate group are the appellant.

I will be asking why we felt the Council needed to spend that amount. What is also concerning is that $387,000 could be the tip of the iceberg. Officer time in briefing two separate external teams would have had a significant cost, especially as the Council retains its own legal team. There are often other ratepayer costs too.

The almost $500,000 quoted in a DomPost report as the cost to Council for both cases could have been useful in funding other services or infrastructure. It left me wondering just how big is the council’s war chest, and what budget do the funds come from. This is another question I will be asking.

There are times when it is necessary for the Council to litigate, and there are some situations when the Council should be attempting to recover costs. Litigation by the Council should be a last resort, and should not be used unfairly or to intimidate. Litigation used unfairly and in an intimidating manner should be seen as being an abuse of democracy.

Simon Woolf is a Wellington City Councillor for the Onslow-Western ward.

7 comments:

  1. Rumpole, 18. April 2018, 22:01

    Councillor Woolf shows considerable integrity and commitment by bringing our attention to the council’s costly legal action in fighting appellants of the Frank Kitts Park redevelop. The council’s potential to recover their costs gives them unbridled power to abuse democracy.

     
  2. HadEnough, 18. April 2018, 22:58

    The Council should absolutely be able to recover costs from these groups. For example, the Environment Court decision said that Enterprise Miramar had no understanding of HASAA or had a flawed interpretation of it. It also found there was no bias in council decision making on this project and conflicts were appropriately managed. Why should ratepayers have to foot the bill for Enterprise Miramar’s folly? I see no problems with the Council recovering their costs.

     
  3. Michael Gibson, 19. April 2018, 6:53

    I am pleased that our excellent local Councillor Simon Woolf is asking questions about the lawyers’ chalking up $387,000 in legal expenses when my Appeal dated 30 November 2016 could have been solved within weeks. Although I am claiming $500 in costs (see below) and am fully conscious that this would come out of ratepayers’ hard-earned funds I undertake to give any returned costs to help a worthy Wellingtonian pay the ghastly increase planned for their rates this year.

    IN THE ENVIRONMENT COURT
    ENV-2016-WLG-000062 & 064
    IN THE MATTER OF appeals under the
    Resource Management Act 1991
    BETWEEN MICHAEL PETER CECIL GIBSON, Appellant
    AND WATERFONT WATCH INCORPORATED, Appellant
    AND WELLINGTON CITY COUNCIL, Respondent
    ____________________________________________________________________

    MEMORANDUM OF MICHAEL PETER CECIL GIBSON
    In response to Paragraph 47 of the Court’s Decision dated 6 April 2018 (re costs)
    DATED 19 April 2018
    Presented for Filing by MICHAEL GIBSON

    MAY IT PLEASE THE COURT
    1. This Memorandum is filed by Michael Gibson, an Appellant. It is in response to Paragraph 47 of the Court’s Decision dated April 6 2018 which requires any application for costs to be “lodged and served within 15 working days”.
    2. My Appeal was filed on November 30 2016.
    3. The matters of concern are very simple (as can be seen in my attached Memorandum to the Court dated April 19 2018).
    BACKGROUND
    4. On December 2 2016 the Court gave a formal Direction to the Respondent to hold discussions with me on the subject of my Appeal.
    5. The Respondent failed to comply with the Court’s Direction.
    6. It still failed to do so in spite of my writing letters to the Respondent’s Mayor informing him that his representatives were not responding to the Court’s Direction and asking him to ensure that they complied.
    7. Many months later there was Court-directed mediation which I attended in addition to about twenty other parties and their representatives. These included the other Appellant, Waterfront Watch Incorporated, and Mr Duncan Laing for Wellington City Council.
    8. My part in the mediation ended when Mr Laing assured the mediator that there was a report stating that the areas whose safety concerned me were, in fact, safe during the daytime and that I should have seen it. He offered to send me a copy.
    9. There was no such report.
    10. Mr Laing seemingly failed to inform the Court-appointed mediator of his erroneous statement to the mediation meeting..
    11. Mediation failed.

    IT IS THEREFORE RESPECTFULLY SUBMITTED THAT
    12. The grossly deficient behavior of Wellington City Council and its representatives are aggravating factors which justify a claim of costs against them.
    13. The matter has taken an exorbitant and ridiculous amount of time to resolve (since November 30 2016).
    14. I therefore seek costs of $500 which are less than the cost of filing my Appeal with the Court.

    Dated at Wellington this 19th day of April 2018
    ________________________________________
    Michael Gibson, Appellant
    (One attachment being a Memorandum to the Court dated April 19 2018 suggesting details for resource consents)

     
  4. CC, 19. April 2018, 8:18

    HadEnough would do well to do some research before writing. The Shelly Bay case was not heard in the Environment Court and the Housing Accord Special Housing Area is not HASAA. The commentator appears to have copied or repeated a similar comment from another publication. Both comments demonstrate a lack of understanding of the various aspects of the Shelly Bay appeal which was not just confined to the HASHA. In time, if the development proceeds, it will be interesting to see if the use of yet another RMA undermining provision gives rise to affordable housing in addition to giving the developers and Council planners a mechanism for avoiding transparency – the reason for the appeal.

     
  5. HadEnough, 19. April 2018, 12:58

    Yes I was thinking of the Chinese Garden case which was in the Environment Court. But that doesn’t change the findings of the High Court, that Enterprise Miramar could not demonstrate that a judicial review was required and that the Council had managed the consents appropriately. And it doesn’t change the fact that ratepayers are left holding the bill for their flawed court action. They exercised their democratic right to challenge a Council decision, the Court found they had no case, therefore they should foot the bill not long suffering ratepayers!

     
  6. Michael Gibson, 20. April 2018, 9:06

    I have no idea about the merits of HadEnough’s opinion on Shelly Bay. But what does he think about the $270,000 cost (and still rising) for the free hand given to the Council’s lawyers to lavish on Frank Kitts Park? And what does he think of Councillor David Lee’s part in sanctioning this sort of expenditure and his embarrassed comments on recovering some of it?

     
  7. Chris Horne, 21. April 2018, 16:15

    The appeals against the resource consents granted for the controversial Chinese Garden in Frank Kitts Park, and against the equally controversial Shelly Bay development, were, in my opinion, in the wider public and environmental interest. The appeals were, I believe, in no way vexatious. Thus I believe that it would be scandalous in the extreme if the Wellington City Council were to seek costs against the appellants in both cases. Councillor Simon Woolf’s thoughtful analysis is entirely convincing.