Judges put Auckland Council lawyers under fire

Auckland Council’s $840,000-a-year chief executive officer could be forced to answer directly to Environment Court judges to explain serious time-wasting by council lawyers. 

Judge Jeff Smith says it is likely either ceo Doug McKay or council chief planning officer Roger Blakeley will be forced to justify why the council continues to cause delays in the Environment Court. 

Council lawyers are feeling the heat after Judge Smith and the court's acting principal Judge Laurie Newhook slammed the Council’s delay tactics.

Judge Smith's criticisms of Auckland Council lawyers were made at a case management conference for Resource Management Act appeals.

“There have been significant delays in almost every Auckland Council planning appeal that this court has dealt with due to the council seeking further time for negotiations and/or requiring approval from the relevant planning committee,” Judge Smith says in a court minute.

Judge Smith says delays were due to the council referring matters to a full committee. He says the council needs to justify such delays to the court.

“In the future it is likely that the court will require either the CEO or the planning director of the council to attend the PHCs to advise the court as to reasons for the council delay, given its criticism of court delays.”

In an earlier review of current and past practice of the Environment Court Judge Newhook says the then Auckland City Council arranged its in-house lawyers “in what appeared to the court to be circumstances of inadequate resource”.

“Consequences included inadequate attention to issues identification, a preference on the council’s part for negotiation over mediation," Judge Newhook says.

He says the council’s lawyers had a “diversionary tendency” to strike out parts of appeals rather than seek to resolve an issue through mediation.

Against this background it was surprising there was quick resolution of most of the appeals relating to the Hauraki Gulf Islands section of the district plan, he says.

Judge Newhook says the Environment Court is aware of the debate over whether the government will legislate to remove the right to appeal to the court on plan and policy statement matters.

“The court takes no part in that debate which it would not be proper for us to comment for constitutional reasons.”

Mike Foster, one of the participants in the case criticised by Judge Smith, told NBR ONLINE he had been trying to subdivide his 0.8ha property for the past two years.

Mr Foster was told he needed to wait until October 5 for a council committee to meet. He said Judge Smith's comments are indicative of a much wider issue.  

“The judge’s comments are reflective of the council seeking to remove people’s appeal rights on the unitary plan. Many of us consider the appeal rights issue a regressive step.”

vyoung@nbr.co.nz