Waiheke vs Auckland City Council – legal update.
At the public meeting in Surfdale on June 22nd 2009 the people of Waiheke agreed that the Waiheke Does it Better campaign should continue activities on a number of fronts – one of which was to be an investigation into the possibility of legal action. A fund was set up to help pursue that action.
What has happened since then
Over the past two months Pita Rikys and others have worked with local solicitor Matthew Tetley-Jones on a potential action for judicial review. This work has necessarily taken place out of the limelight. The legal team discussed the issues informally with a number of notable barristers. An Auckland-based barrister who lives on the island, Kevin Glover, recently gave a formal opinion to the group on the prospects for such a claim and other matters relating to the case.
As a result of all this the steering group of the campaign have decided that a claim for judicial review would not be cost effective in the circumstances.
Why are we not taking the case
I hope here to try to summarise the issues and our reasoning. Anyone wishing further details can get in touch with the legal group to review the documents.
In short the problem is that although it is clear (to us at least) that ACC acted badly – (either through incompetence or ill will) this does not automatically make the decision void.
Local authorities are given broad powers to determine decision making processes under the Local Government Act. The Act allows the council to make a decision which is inconsistent with an existing policy – providing they do so deliberately. The council can justify their decision on the basis of unification of waste services and cost reductions. In effect the council is allowed to ignore environmental concerns based on the law as it stands.
They can also claim that the the decision was made in full knowledge of the errors of fact and process – as we had helpfully pointed them out, and therefore the contract with TPI stands as the full council’s final decision.
Even if we could succeed in convincing a High Court judge that the decision was unlawful, it would be extremely unlikely to get the contract with TPI overturned and/or have Clean Stream re-instated. The more likely outcome, on a best case scenario, would be a declaration that the Council did not act properly, but even this might not come until long after the council had been replaced.
Our case does have public interest, natural justice and the fine detail of the law on its side. However it is difficult to prove and the likely end results may not be worth the time and potentially large sums of money involved both in taking the case and the exposure to paying the council’s costs if we do not succeed.
About the fighting fund
We raised over $4000 specifically to support the legal action. Of this $1000 was spent on the formal opinion. This represents a huge saving on what would normally have needed to be spent to get to this information. The fund managers will be in touch with donors to check that they are happy with this expense and to return the remaining funds. If you were an anonymous donor please get in touch.
What next for the campaign
Although this is a disappointment it is not the end of the story. This was just one strand of our activities and the others all continue.
Perhaps the most immediate effect of the whole affair was the impact the story had on the Auckland Governance select committee. The committee came to the island to hear a full day of personal presentation and the waste issue came up again and again not just as a complaint about the malevoleance and ineptitude of ACC but also as an illustration of the danger of an even larger and more detatched super city. The waste issue really hammered home the need for a large amount of local autonomy for Waiheke. So we are now watching out for the revised Bill with interest.
The Charter group is meeting with the community board and TPI this week to talk about how waste is to be managed on the island. I’ll send out an update after that meeting.
The Direct Action group is mainly focussed now on a No Wheelies campaign. The key goal here is to get a resounding NO THANKS response to the Council’ ‘bags or bins’ letter to ratepayers. Grab a No Wheelies sticker before they all sell out – they will be valuable one day – does anyone have a complete set of No Nukes, No GM, stickers ?
Please continue to talk to friends, write to the papers etc about why big bins mean more rubbish. The goal is that less than 10% take up that means TPI have to find another (better) way.
The Waste Resource Trust and Clean Stream Waiheke Ltd are still active – Junk to Funk is coming soon. More details soon.