As the days tick away on the Transport Agency’s statutory timeframe to appeal against the Basin Reserve flyover decision, the question on everyone’s mind is whether the National government would step in and legislate.
It’s pretty clear that the grounds for any legal appeal to the decision to refuse consent for the flyover are (intentionally) very narrow – which was part of the rationale for the Board of Inquiry process in the first place. Put in place by National in its first term, the purpose is to give everyone a single shot at making their case without all that tedious mucking about in appeals to the Environment Court. Which has been fantastic at bulldozing opposition to other motorways (see also: Transmission Gully and its multitudinous offshoots), but has had some unexpected consequences for the Roads of National Significance at the Basin.
If the Transport Agency were to appeal, they would have to have a very good argument that the legal process wasn’t run correctly. Which might look a bit petulant given they had months of hearings, years of preparation and millions of taxpayers’ dollars to draw any supposed flaws to the Board’s attention. An appeals court might take a dim view of an over-resourced agency discovering alleged flaws only after they didn’t get their way, meaning there would be real credibility risks for the Agency (and undoubtedly some careers) if they made a mess of things twice.
And in the same way the Agency’s options are limited, so are the Minister’s. According to the same legislation, he can’t simply overrule the Board. Nope, if Gerry Brownlee really wants a flyover, he would have to bring out the thermonuclear option and legislate.
There’s form for this, of course, in the special enabling legislation that made Memorial Park happen. After the incoming National government scrapped plans to tunnel under the monument to our war dead so that they could give a black eye to outgoing Minister of Culture and Heritage Helen Clark – who by that time was in a cozy office in the UN and probably didn’t give a toss – they discovered that putting the Anzac memorial in a highway lay-by in time for the centenary of WWI wasn’t the brightest idea they’d ever had. So special legislation passed under urgency was the order of the day. (Though it hadn’t been preceded by a 500-page decision from a government-appointed board of inquiry.)
Will Gerry try and pull the same stunt again? There are some people around town – we’re looking at you, John Milford – who are practically salivating at the thought of all those pesky NIMBYs being swept aside by the sword of Parliamentary wrath. But there would be some big challenges for the government, notably in the apparent lack of public support for such a manoeuvre.
It’s all very well dispensing with due process to commemorate our glorious war dead in their centenary year; it would be something else entirely to come out swinging in the cause of buggering up a perfectly good cricket ground. It’s a fight that Gerry probably doesn’t want, because there’s only bad blood to be gained.
Or does he? Assuming National gets a third term, might he decide that he doesn’t really need to be accountable to anyone in particular? If Gerry won’t stop for airport security, he might not want to back down for a bunch of Chardonnay socialists in Mount Victoria. Wellington Central is a seething mass of people who party vote Green and elect arch-enemy Grant Robertson as their MP, so sticking it to the locals might look like a great idea. National doesn’t have a single electorate MP south of the Rimutakas, so what do they have to lose?
And National has form with this kind of anti-democratic behaviour. Environment Canterbury (in Gerry’s patch) was gutted and replaced with unelected commissioners; CERA (in Gerry’s patch) has stepped over the top of the Christchurch City Council so often that ex-Mayor Bob Parker practically had boot marks on his head. Dictatorial over-reach seems to have been part of the National Party play book.
So might Gerry Brownlee try to legislate the flyover into existence? The opponents of the flyover may not be out of the woods yet.