Wellington Scoop

Flyover inquiry – more speed, less haste

Faced with a proposal from the Transport Agency for “reasonable limits on cross-examination” at the Basin flyover inquiry, a lawyer representing flyover opponents has written a letter detailing what he sees as failures by the agency and issues of credibility which need to be explored. He has also described a “snowstorm of electronic paper” without a guide to the relevant contents.

Philip Milne, counsel for the Architectural Centre and the Newtown Residents Association, has told the board of inquiry (in a letter published on the inquiry’s EPA website) that to a large extent the need for extensive cross examination has arisen as a result of the Transport Agency’s failures to:

Clearly and fairly present its case in its evidence in chief.

To provide a clear statement in evidence in chief as to the process applied to consideration of alternatives at various stages.

To provide key documents as part of its evidence in chief

To provide key documents prior to the commencement of the hearing.

To provide a clear and complete chronology of relevant processes and decisions as part of its evidence in chief, linked to the relevant parts of relevant documents.

To provide a clear guide to the location of critical material in the voluminous
documents which it seeks to rely on.

To provide key documents as part of the bundle (rather than dropping them into a ‘dropbox” but only if requested by parties or the Board.

Mr Milne’s letter states that there have also been inconsistent and in some cases (in his belief) in-credible statements made by key Transport Agency witnesses which have raised “issues of consistency/credibility/weight which need to be explored.”

The choice of the Board of Inquiry process and the applicant’s insistence on keeping to the very tight timeframes for submitter evidence, combined with its desire for witness caucusing prior to the submitter evidence, coupled with the limited resources of submitters made it impossible for submitters to peruse the voluminous reports prior to the hearing. Submitters and their witnesses necessarily focussed on the evidence in chief. In the absence of a clear guide to the relevant documents and the relevant parts of those documents it was an impossible task to find relevant material.

Some particular examples:

The Board and parties still do not have a document which lists each witness and the particular reports relied upon by those witnesses. Instead they have a snow storm of electronic paper and no clear map through the storm.

No clear chronology was provided with links to the relevant documents. It has taken weeks for the Applicant to provide the requested chronology and it is still incomplete and not clearly referenced to documents (there was no consultation regarding that chronology).

The option X preliminary assessment was not referred to in evidence in chief or in rebuttal evidence and was not one of the documents on the Transport Agency site.

Dr Stewart’s evidence and his TR 19 did not provide a clear statement of the process, chronology or methodology used by NZTA to consider options.

His very much incomplete explanation of the Inquiry by Design stage and the basis for his Annexure B are examples in point.

Dr Stewart’s and indeed Ms Wraight’s answers in cross examination have highlighted further gaps, inconsistencies and confusion.

The failure to provide the March 2013 draft assessments of option x demonstrates her poor preparation by counsel or worse.

Key documents have not been referenced in evidence in chief and in many cases were not provided in the original bundle of documents or on the EPA site or the relevant pages of the Transport Agency site

Documents requested of the Transport Agency were not disclosed and were provided at a very late stage.

The document Wraight 4 should have been appended to the Feasible Options report and should have been referred to by her in her Evidence in Chief or at least by Dr Stewart. The failure to provide this document well in advance of Ms Wraight taking the stand, necessitated cross examination “on the hoof” which was unfair to my Clients and added time to the process. The failure to reference that document as part of Ms Wraight’s evidence in chief has meant that Ms Menzies has not has an opportunity to respond. Her response to that and other new material will now be addressed in supplementary evidence.

In my submission the Board is owed an explanation and an apology regarding the late appearance of this document (Wraight 4) , the March 2013 draft assessments, the July 2013 “evaluation letter”.

Mr Blackmore took almost a month to file his supplementary evidence along with 70 documents. This delay has been explained by reference to one aspect of his evidence. That aspect could readily have been dealt with separately. Many of the documents provided should have been referenced in a chronology and/or in Dr Stewart’s or Mr Blackmore ’s evidence….

Mr Milne ends his letter by saying that the “real issues of fairness” are not in terms of the Transport Agency, but in terms of the submitters.

If the Board were to curtail the ability of the Counsel in opposition to properly test the Transport Agency evidence then there would be a miscarriage of justice. This in an Inquiry on a contentious matter of called in as being a matter of national significance. That has a number of consequences including:

An obligation on the Board to inquire rather than be bound by strict rules of
evidence and an adversarial framework.

Unrealistic time frames…particularly in terms of preparation of evidence in chief.

A David and Goliath situation in terms of disparity between parties.

A need for the Applicant to fully and transparently to disclose its case in
evidence in chief.

A need for a clear guide to the relevant parts of relevant documents relied upon.

A presumption that an Applicant will not need to address gaps and deficiencies during the hearing and after key decisions have been made ….

The adequacy of the Applicant’s approach to this issue [amenity effects] and the plausibility of its conclusions on this matter (and the overlapping heritage issue) is critical for my client and the public. It is clearly a key issue and I would suggest the most critical issue for the Board… The question of adequacy of consideration of alternatives, is the second key issue for my client. The third key issue … relates to the question of whether transport benefits are being overstated by the Transport Agency.

… I again reiterate that the length of this hearing is largely a reflection of the poor preparation by the Transport Agency and its Counsel and the time and financial constraints faced by other parties. The Architectural Centre and the Newtown Residents Association are appreciative of the Board’s endeavours to overcome these sources of unfairness as far as is possible.

The NZ Transport Agency is a public authority. It is seeking to use significant public funds for a project which will have lasting adverse (and positive)impacts on the fabric of our Capital City. The project is contentious and is deserving of a continued fair hearing. What the agency is proposing is an attempt to limit further cross examination regarding actual or potential inadequacies in its case. I and my clients fully appreciate the need for more speed and less haste. It is unfortunate that the Agency does not seem to have appreciated this point in preparing for this hearing.

The full letter from Philip Milne
The Transport Agency letter