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Conflicts of interest: a secret flyover MOU and its three signatories

Evidence now available online from the Basin flyover inquiry has shown a strange and conflicting contradiction between a decision made by Wellington city councillors and an agreement that was formalised a few days later.

The conflict is evident in a Memorandum of Understanding signed in March last year. The MOU was signed by the council’s then chief executive Garry Poole, by Wellington City Councillor John Morrison for the Basin Reserve Trust, and by Rod James for the Transport Agency.

Shortly before the MOU was signed, councillors had resolved that a number of ways to “mitigate” any flyover should be explored. And their resolution had repeated that their preference continued to be for an underground solution.

Their resolution is not reflected in the MOU, which does not mention the ways with which councillors wanted the flyover to be mitigated. The three signatories of the MOU agreed with each other that the only important mitigation was the building of a new cricket pavilion – a structure which was not mentioned by councillors in their resolution a few days earlier.

The three people who signed the MOU also committed the council to conditions that were to be followed provided the Transport Agency paid for the cricket pavilion. The MOU states that it is intended to provide the basis to ensure that the adverse effects of the flyover “can be mitigated in such a manner as not to prevent the NZ Transport Agency from obtaining consent” for the flyover. In effect dismissing the specific issues that councillors had only just decided were important, the MOU states that the council would not present any evidence on mitigation issues “if that could prevent the Transport Agency from obtaining consent” for the flyover.

The MOU was a secret document. Its existence was not revealed till Sir John Anderson of the Basin Reserve Trust mentioned it in his evidence to the board of inquiry. Its existence has since been confirmed by Selwyn Blackmore of the Transport Agency in rebuttal evidence.

Given that John Morrison – signing the MOU for the Basin Reserve Trust – was also a city councillor, there would seem to have been a very apparent conflict of interest. Councillors, including Morrison, had agreed to a different set of conditions from what was set down in the MOU which he signed. But the council’s then chief executive may also have been conflicted, by signing a document which failed to reflect a decision that had been made by councillors.

There’s more. A clause in the MOU seems to contravene the rule that expert witnesses must act impartially and must not act as advocates for the party that engaged them. Disregarding this, the MOU agrees that the council and the trust “will provide expert evidence to support the 65metre structure during the consenting process”. If this is pre-determining what expert witnesses would be expected to say, it sets up a serious issue for the council, and the board of inquiry, to confront.

Most serious of all is the fact that the MOU, signed by a councillor and by the council’s chief executive, failed to reflect a decision that had been made by city councillors in a formal resolution.