IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2017-404-001073
[2018] NZHC 1462
BETWEEN

SAVE CHAMBERLAIN PARK
INCORPORATED
Applicant

AND

AUCKLAND COUNCIL
Respondent

Hearing:

8 February 2018

Appearances:

Julian Long, Caitlin Hollings and Douglas Cowan for the
Applicant
Katherine Anderson and Harriet Quinlan for the Respondent

Judgment:

19 June 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 19 June 2018 at 10:00 am
pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:

SAVE CHAMBERLAIN PARK INCORPORATED v AUCKLAND COUNCIL [2018] NZHC 1462 [19 June
2018]

 Contents
Paragraph
Number
Introduction ............................................................................................................. [1]
Factual background
History, present configuration and use ................................................................. [3]
The Albert-Eden Local Board ............................................................................. [12]
Save Chamberlain Park Inc ................................................................................ [20]
This application ..................................................................................................... [21]
(a)
First cause of action: the allocation decisions ........................................ [22]
(b)
Second cause of action: failure to collaborate and co-operate with other
boards ....................................................................................................... [24]
(c)
Third cause of action: predetermination .................................................. [25]
(d)
Fourth cause of action: obligation to consult .......................................... [26]
Approach ................................................................................................................ [27]
First cause of action: did the allocation decisions amount to an error of law?
Introduction ......................................................................................................... [28]
The Council and its functions under the LGAC .................................................. [30]
Relevant allocation decisions .............................................................................. [46]
Analysis ............................................................................................................... [60]
The AELB, Chamberlain Park and the background to the second, third and
fourth causes of action
Introduction ......................................................................................................... [94]
Early steps ........................................................................................................... [96]
Initial consultation on the draft AELB Plan ..................................................... [112]
Further consultation and the preparation of the Master Plan .......................... [125]
Consultation on the four scenarios and the Master Plan ................................. [144]
Second cause of action: Did the AELB fail to collaborate and co-operate with
other boards?
Introduction ....................................................................................................... [154]
Submissions ....................................................................................................... [156]
Analysis ............................................................................................................. [159]
Third cause of action: Did the AELB approach its decision-making with a
closed mind?
Introduction ....................................................................................................... [171]
Predetermination – legal principles .................................................................. [174]
Analysis ............................................................................................................. [186]
(a) Was there predetermination before February 2014? .............................. [188]
(b) Events between February 2014 and April 2015 ..................................... [200]
(c) The in principle decision of 22 April 2015 ............................................. [216]

 Conclusion on predetermination ....................................................................... [224]
Fourth cause of action: Was there a failure to consult on the case for change?
Introduction ....................................................................................................... [225]
Consultation obligations: legal principles ........................................................ [227]
(a) LGA principles........................................................................................ [229]
(b) A common law duty of consultation?...................................................... [248]
Consultation: assessment .................................................................................. [253]
Having an open mind: legal principles ............................................................. [273]
Having an open mind: assessment .................................................................... [276]
Conclusion......................................................................................................... [282]
Result .................................................................................................................... [286]
Costs ..................................................................................................................... [288]

 Introduction
[1]

Auckland is this country’s largest and one of its most rapidly expanding

centres.

As the city’s demographics change, the diverse needs of its many

communities correspondingly grow.

This judgment concerns decisions by the

Auckland Council (“the Council”) and the Albert-Eden Local Board (“the AELB”) to
meet those changing needs; the proposed redevelopment of the Chamberlain Park Golf
Course (“Chamberlain Park”) into a multi-facility space for the wider benefit of local
communities.
[2]

The questions for determination in these proceedings are whether those

decisions were correct in accordance with public law principles.
Factual background
History, present configuration and use1
[3]

In 1939, what was described as a scrubby area of bush and waste land used as

a water collection area for the Western Springs pumping station, was converted by
hand into an 18-hole golf course known as Chamberlain Park.2
[4]

Chamberlain Park has, at all times, been owned by the Council or its earlier

iterations. It has always been an 18-hole golf course although its configuration has
been slightly modified over time.
[5]

Chamberlain Park is presently a par 69 for men with a standard number of par

3, par 4 and par 5 holes. The course plays between 5,040 and 5,242 metres. For
women, the course is a par 70. The 12th is one of the longest par 5 holes in Auckland.
[6]

The golf facilities at Chamberlain Park comprise a simple club house and

associated parking area. The club house has a rudimentary pro shop where purchases
of golf clubs, balls, tees and other golf accessories may be made. Golf clubs can be

1
2

See generally the Affidavit of Richard Quince, sworn 10 August 2017.
Named after Neville Chamberlain, Prime Minister of the United Kingdom between 1937 to 1940.

 hired. In the past the club house also accommodated a small café where food and
drink could be purchased.
[7]

Two incorporated societies operate the golf course and use the facilities. These

are the men’s and ladies’ golf clubs. Members pay an annual subscription.
[8]

However, unlike most other golf clubs, membership of Chamberlain Park does

not entitle the member to play on the course. This limitation reflects the history of
Chamberlain Park which was operated by the then Auckland City Council. In 1996
management passed to a private company, Auckland City Golf Ltd under a lease.
[9]

In July 2013 Auckland City Golf Ltd ceased operations and control passed

back to the Council. Since then the course has been managed by the Council through
its City Parks Services under contract to the AELB.
[10]

The green fees are modest and affordable. That is an historical artefact which

reflects the Council’s requirements when previous, private operators ran the golf
course. Chamberlain Park also differs from most other golf courses in that there are
no reserved times. Players may turn up and play at any time.
[11]

Chamberlain Park is one of only two 18-hole public golf courses in the

Auckland region which is owned and operated by a public body and is open for play
to all comers at any time.3
The Albert-Eden Local Board
[12]

The AELB was established as a local board to service the community within

its local area as defined by Order in Council dated 15 March 2010.
[13]

The local board is responsible for decision-making in relation to those parks

and facilities within its area which are not the responsibility of the Council. This
includes Chamberlain Park.

3

The other is the Takapuna Golf Course in the Kaipātiki Local Board area.

 [14]

In 2011 the Council recognised there was pressure on winter sports fields in

the Auckland region due to population growth and changing participation trends. The
Council commissioned a report from Longdill and Associates on the capacity shortfall
of sport fields in the Auckland region to identify and quantify these needs.
[15]

The report identified a significant capacity shortfall and projected required

additional capacity by 2021. For the area governed by the AELB the required capacity
was estimated to be 339 sports field hours per week.
[16]

The Council informed the AELB that it was one of five areas in the Auckland

region most in need of more space for sports, a need forecast to become critical over
the next decade. From 2011 the AELB also received input from various sports clubs
and groups within its area. Consistently, these suggested that capacity for sports was
stretched.
[17]

As a result the AELB campaigned the Council for additional funding to acquire

more open space. However, no more space was available. The AELB then looked to
identify any existing space within its own boundaries and to examine the means by
which it might increase and maximise the use of any existing open spaces.
[18]

In 2013 the AELB began to consider Chamberlain Park as part of its wider

review of the availability of open spaces. This was prompted by the expiry of
Auckland City Golf Ltd’s lease. Because Chamberlain Park was both owned and
operated by the Council, the AELB regarded it as sensible to examine the open space
at Chamberlain Park. Thus, in February 2014, the AELB asked Council policy
analysts to report on what potential other uses might be made of Chamberlain Park.
[19]

The detail of that examination is discussed later in this judgment. In summary,

the AELB briefed the Council’s policy analysts to assess Chamberlain Park to
determine whether it could accommodate a nine-hole golf course, a driving range, a
Chinese garden, an aquatic centre and eight to nine sports fields. The purpose of the
referral was to obtain options for redevelopment on which the AELB would consult.

 Save Chamberlain Park Inc
[20]

The applicant, Save Chamberlain Park Inc (“Save CP”), is an incorporated

society established by a group of like-minded individuals. Initially its purpose was to
identify and lobby mayoral and local board members and candidates to retain
Chamberlain Park in its present configuration. A website was set up to emphasise the
Auckland-wide community nature of Chamberlain Park and to advance the case for
opposing redevelopment. Members of Save CP include golfers and others who share
a common interest in retaining Chamberlain Park in its current form.
This application
[21]

These proceedings challenge the lawfulness of the Council’s decision-making

in relation to the development of a Master Plan for Chamberlain Park. There are four
causes of action.
(a)

First cause of action: the allocation decisions

[22]

The first cause of action and Save CP’s principal challenge focuses on whether

the correct governance arm of the Council made decisions regarding the recreational
use of Chamberlain Park. From its inception in November 2010, the Council has
operated on the basis that the local board possesses the decision-making responsibility
for Chamberlain Park. Save CP says decisions by the AELB relating to Chamberlain
Park are unlawful because they should have been made by the governing body, not the
AELB.
[23]

If Chamberlain Park fails in this aspect of its challenge, it pleads three further

causes of action.
(b)

Second cause of action: failure to collaborate and co-operate with other
boards

[24]

Save CP says the local body breached any obligation under s 16(3) of the Local

Government (Auckland Council) Act 2009 (“the LGAC”) to collaborate and cooperate with other local boards; an obligation which arose “in relation to any change
of use of Chamberlain Park”.

 (c)

Third cause of action: predetermination

[25]

Save CP next alleges the local board predetermined to change the use of

Chamberlain Park from the “existing status quo”. It says this predetermination arose
sometime before February 2014, being the time Council staff were asked to prepare
an assessment of Chamberlain Park.

It also says that the AELB approached

community engagement in consultation with a “closed mind as to the status quo and
the possibility or desirability of that being maintained”.
(d)

Fourth cause of action: obligation to consult

[26]

Finally, Save CP claims the local board breached a positive obligation to

consult that required it “to consult on the status quo at the outset”. This aspect of the
claim overlaps in part with the third cause of action.
Approach
[27]

Before turning to consider each of the causes of action, it is apposite to briefly

comment on the Court’s role in considering the judicial review of the exercise of
powers by a local authority. As Richardson P stated in Wellington City Council v
Woolworths New Zealand Ltd (No 2), proceedings of this sort involve, essentially,
questions of statutory interpretation.4 The Court may review whether the local
authority observed the criteria and purposes specified in the legislation and excluded
considerations which were extraneous and did not make their decision for a purpose
not contemplated by the legislation. The Court may also review whether the decision
was reasonable in the sense that the outcome of the local authority’s exercise of
discretion is irrational or such that no reasonable body of persons could have arrived
at the decision, and the only proper inference is the power itself has been misused.
Something overwhelming is required for that second conclusion.5

4
5

Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.
At 545, citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223 at 230 per Lord Greene MR.

 First cause of action: did the allocation decisions amount to an error of law?
Introduction
[28]

This first cause of action concerns the Council’s allocation powers under s 17

of the LGAC. That section empowers the “governing body” to reserve decisionmaking responsibility for any non-regulatory activity to itself or delegate that power
to local boards. Save CP argues that the allocation of decision-making in respect of
Chamberlain Park to the AELB was unlawful and, thus, void. Section 17 has not
previously been considered by the courts.
[29]

In order to resolve this issue, the process by which the allocation of decision-

making responsibility occurred requires some description. This is comprehensively
covered in the evidence of Phillip Wilson, the governance director of the Council and
a member of the Council’s executive leadership team. Mr Wilson’s division supports
the activities of the Mayor, 20 councillors and the 21 local boards. As such, he has
specific responsibility for ensuring local boards have the support necessary to fulfil
their roles and ensuring the Council organisation effectively balances local views and
aspirations against regional network planning.
The Council and its functions under the LGAC
[30]

The Council was established on 1 November 2010 under the LGAC; bespoke

legislation for Auckland. The Council makes decisions for the Auckland region which
extends to Te Hana in the north, Pukekohe to the south, Kawakawa Bay to the east and
Piha to the west.6 The LGAC sets out its structure and functions, duties and powers
which differ from the general provisions applying to other local authorities operating
under the Local Government Act 2002 (“the LGA”) and other enactments.7
[31]

There are two classes of decision-making within the Council.8 The Council,

as the governing body, is a unitary authority.

More proximate to Auckland’s

communities, local boards are responsible for local decision-making.
6

7
8

As defined in the Local Government (Auckland Boundaries) Determination 2010, and contained
in a map with the reference number LGC-Ak-R1.
Local Government (Auckland Council) Act 2009, s 3(b).
The Auckland Council’s governance structure also includes the Independent Māori Statutory
Board, established by s 81, and whose members sit on certain committees in accordance with s 85.

 [32]

The “governing body” is defined in ss 4 and 8 as the entity comprising the

members of the Council, being the Mayor and Council members, elected in accordance
with the Local Electoral Act 2001. Certain decisions under the LGAC are reserved
for the governing body. These include the setting of rates and all regulatory decisions.
[33]

Other decisions are reserved for local boards. Local boards are established for

each local board area and also made up of members, elected by the local board
constituency.9 Local boards are unincorporated bodies and thus do not have separate
legal standing from the Council.10
[34]

Local boards enjoy a broad mandate. As Ms Anderson for the Council

emphasises, local boards are not community boards. While community boards act
solely under delegated authority,11 local boards have the power to make specific
decisions on behalf of the Council relating to matters affecting their local board areas
which are set out in statute;12 delegated by the governing body or by Auckland
Transport;13 or allocated by the governing body pursuant to s 17. They also have
governance responsibilities over a discrete set of local assets, services and activities,
a responsibility to provide input into regional plans, policies and decisions, and to
engage with their communities to identify local needs and preferences.
[35]

In the scheme of the LGAC, s 17 is one of a number of provisions which

prescribe the manner by which the Council makes its decisions.14 It concerns what
Mr Wilson describes as “a middle group of decisions”, non-regulatory decisions. The
governing body is responsible for determining the appropriate allocation of nonregulatory decision-making between the governing body and the local boards, based
on principles set out in s 17 of the LGAC. It is these allocations which are the focus
of the first cause of action.
[36]

Section 14 sets out the general scheme of Council decision-making. It provides

that both the governing body and local boards are responsible and democratically
9
10
11
12
13
14

Sections 10, 11.
Section 12.
The establishment of community boards is provided for in s 49 of the Local Government Act 2002.
As provided in ss 13 and 16 of the Local Government (Auckland Council) Act 2009.
See sections 13 and 31, and 13 and 54, respectively.
See generally sections 14 to 23.

 accountable for the decision-making of the Council. Whether the responsibility for
making any particular decision rests with the governing body or with one or more of
the local boards depends on the nature of the decision being made.15 Decision-making
responsibility is then allocated in subs (3) as follows:
(a)

section 15 sets out the classes of decisions which the governing body
must make, including decisions in relation to some non-regulatory
activities;16

(b)

section 16 sets out the classes of decisions which local boards must
make, including decisions in relation to some non-regulatory
activities;17 and

(c)

section 17 guides the governing body’s exercise of its power to allocate
responsibility for decisions in respect of non-regulatory activities of the
Council, either to itself or the local boards.

[37]

“Non-regulatory activities” are not defined (a point I return to later), but “local

activities” are defined as “the non-regulatory activities of the Auckland Council in
respect of which a local board is allocated decision-making responsibility under
section 17”, and include providing services, providing and operating facilities, and
providing funding and other support to groups and organisations.18 Section 17, in its
entirety, is set out below:

15
16
17
18

“17

Principles for allocation of decision-making responsibilities of
Auckland Council

(1)

Decision-making responsibility for any non-regulatory activity of the
Auckland Council must be allocated by the governing body—
(a)

to either the governing body or the local boards; and

(b)

in accordance with the principles set out in subsection (2); and

(c)

after considering the views and preferences expressed by each
local board.

Section 14(2).
Section 15(1)(b)(ii).
Section 16(1)(a).
Section 4.

 (2)

[38]

The principles are—
(a)

decision-making responsibility for a non-regulatory activity
of the Auckland Council should be exercised by its local
boards unless paragraph (b) applies:

(b)

decision-making responsibility for a non-regulatory activity
of the Auckland Council should be exercised by its governing
body if the nature of the activity is such that decision making
on an Auckland-wide basis will better promote the well-being
of the communities across Auckland because—
(i)

the impact of the decision will extend beyond a single
local board area; or

(ii)

effective decision making will require alignment or
integration with other decisions that are the
responsibility of the governing body; or

(iii)

the benefits of a consistent or co-ordinated approach
across Auckland will outweigh the benefits of
reflecting the diverse needs and preferences of the
communities within each local board area.”

A number of key principles appear in the text of s 17:
(a)

Allocation decisions are mandatory. Only two bodies may be allocated
responsibility; the governing body or the local boards. No other entity
may exercise decision-making responsibility for non-regulatory
activities. It is not permissible for an activity not to be allocated.

(b)

Allocations must be made in accordance with the principles set out in s
17(2).

(c)

Allocation decisions are only to be made after the governing body has
considered the views and preferences expressed by each local board.

[39]

I agree with Mr Long, for the applicant, when he submits that the allocation

power under s 17 is not unfettered. It must be exercised in a principled way. Section
17(2) lists the principles which the governing body is obliged to follow when making
an allocation decision. It contains the presumption that decision-making for a nonregulatory activity of the Council should be exercised by its local boards. That
presumption is rebutted only where s 17(2)(b) is engaged, namely where the decision-

 making responsibility for a non-regulatory activity of the Council should be exercised
by its governing body because the nature of the activity is such that decision-making
on an Auckland-wide basis would better promote the well-being of the communities
across Auckland. As Mr Long submits, whether paragraph (b) is engaged turns on the
nature of the activity.
[40]

Listed in s 17(2)(b)(i)-(iii) are three indicators of why decision-making on an

Auckland-wide basis would better promote the well-being of communities across
Auckland:
(a)

because the impact of the decision will extend beyond the single local
board area;

(b)

because effective decision-making requires alignment or integration
with other decisions which are the responsibility of the governing body;
or

(c)

because the benefits of a consistent or co-ordinated approach across
Auckland will outweigh the benefits of reflecting the diverse needs and
preferences of the community within each local board area.

[41]

As Ms Anderson submits, the focus of s 17(2) is the allocation process. The

considerations contained in s 17(2)(b)(i)-(iii) do not invite the application of a tick box
exercise. The process necessarily requires the consideration of broader issues beyond
those of particular interest groups.
[42]

The principles set out in subs (2) reflect the careful balancing of priorities

which underpin the division of decision-making power in the LGAC between the
governing body and the local board. On the one hand is the need, recognised in the
purpose section and s 9,19 for unified and streamlined decision-making in the Auckland
area. On the other is a desire to maintain and enable democratic decision-making
within local communities, recognised in ss 10, 16 and 20.

19

Section 9 provides that the role of the Mayor is to articulate and promote a vision for Auckland
and provide leadership for the purpose of achieving objectives that will contribute to that vision.

 [43]

[44]

Section 20 requires each local board to adopt a plan, the purpose of which is:20
“(a)

to reflect the priorities and preferences of the communities within the
local board area in respect of the level and nature of local activities to
be provided by the Auckland Council over the next 3 years; and

(b)

to identify and describe the interests and preferences of the people
within the local board area for the purposes of enabling the local board
to communicate those interests and preferences for the purposes of
section 16(1)(b); and

(c)

to provide a basis for developing the local board agreement for each
of the next 3 years; and

(d)

to inform the development of the next LTP, particularly in relation to
the identification of the non-regulatory activities of the Council for
which decision-making responsibility should be allocated to the local
board; and

(e)

to provide a basis for accountability of the local board to the
communities in the local board area; and

(f)

to provide an opportunity for people to participate in decision-making
processes on the nature and level of local activities to be provided by
the Council within the local board area.”

As Ms Anderson submits, this is a mechanism by which local boards are able

to determine local preferences and priorities in relation to non-regulatory activities for
which they have been allocated responsibility, and consult with their communities.
Parliament’s Auckland Government Legislation Committee, on its amendments to the
Local Government (Auckland Council) Bill which led to the inclusion of s 17, is
recorded as saying:21
“Our amendments seek to ensure that decision-making by the two tiers of the
Auckland Council would be allocated according to clear principles, and that
the governing body of the Council and the local boards would sit alongside
each other and have distinct roles, rather than operate in a hierarchical
relationship.”

[45]

The division of responsibility set out in s 17 reflects this framework. As

Ms Anderson submits, the principle that local boards are best placed to make most
decisions is underscored by the presumption contained in s 17(2)(a). However, as
Mr Long adds, the principles listed in s 17(2)(b) recognise that some non-regulatory

20
21

Section 20(2).
Local Government (Auckland Council) Bill (36-2) (select committee report) at 3.

 decisions concerning certain activities might, on closer examination, be better suited
to the wider focus of the governing body.
Relevant allocation decisions
[46]

One of the early tasks in the rollout of the new unitary authority was the initial

allocation of non-regulatory decision-making between the governing body and the
local boards. The Auckland Transition Agency (“the ATA”) was mandated to carry
out this initial allocation.22 The ATA’s allocation was contained in the long term plan
(“LTP”) which it prepared for the period 1 November 2010 to 30 June 2012. A LTP is
a 10 year forecast which every council in New Zealand is required to publish, and
against which the council sets out its 10 year budget. LTPs identify the future focus
of council activities, the intended community outcomes and provide local
communities with a basis for holding the governing body accountable. Annual plans
and budgets are adopted annually.
[47]

The ATA’s LTP published its initial allocation in an “allocation table” which

listed a wide range of non-regulatory activities and prescribed whether the governing
body or a local board was the decision-maker in respect of each activity. After the
Council was established and the ATA’s functions were extinguished, allocation tables
continued to be published.
[48]

Perhaps unsurprisingly, the ATA’s initial allocation table broadly allocated

decision-making in respect of “local” recreation and sports activities and open spaces
to local boards, and regional activities to the governing body. After the publication of
the ATA’s initial LTP allocation table, Mr Wilson describes any further modifications
as “incremental in nature”.
[49]

Since the ATA’s initial LTP, two further LTPs have been published by the

Council. The first was in 2012, covering the decade 2012 to 2022. The second was
published in 2015 for the period 2015 to 2025. The allocation decisions by the ATA

22

The ATA was established under the Local Government (Tamaki Makaurau Reorganisation) Act
2009.

 and in the 2012 LTP are in focus. They were the operative allocation decisions at the
time most of the decisions concerning Chamberlain Park were made.
[50]

During the preparation of the Council’s 2012 LTP the starting point was the

initial ATA allocation table. Amendments identified by exception where experience
demonstrated such a need, with a modest number proposed by the Mayor. These were
considered by the Strategy and Finance Committee (“the SFC”), which recorded
agreement in principle, subject to a review process involving local boards.
[51]

During the review process input was received from various sources including

local body support staff, a governing body workshop, a review by senior organisational
managers and the Mayor’s office. Workshops were held in October and November
2011 with local boards to discuss issues identified by that process. Also considered
was

a

report

entitled,

“Allocation

of

Non-Regulatory

Decision-Making

Responsibilities”. This report acknowledged that more work was required to assist
with allocating decision-making of, amongst other things, parks within the ambit of
the governing body. The SFC approved the proposed revisions and released a draft
plan for public discussion.
[52]

The public consultation process included the convening of regional and local

public hearings at which submissions were received on the LTP, including the
allocation table. The governing body adopted the 2012 LTP on 28 June 2012.
[53]

Significantly, regional parks within the governing body’s decision-making

ambit were listed in Schedule 1 of the allocation table. Decision-making for all
remaining parks was allocated to local boards. Schedule 1 is entitled, “Regional
Facilities and Parks”. Regional parks are listed as those subject to Treaty of Waitangi
settlements and parks delivering Auckland-wide benefits. No regional recreation
facilities are listed. However, responsibilities in respect of both recreational services
and parks services were allocated.
[54]

While this work was being undertaken other policy work had commenced on

the question of which parks, if any, should be considered as delivering “Aucklandwide benefit”. On 15 February 2012, the SFC agreed that the Regional Development

 and Operations Committee (“the RDOC”) would approve a procedure for an evidencebased assessment of Auckland-wide benefits delivered by parks and the creation of a
schedule of specific parks delivering Auckland-wide benefits. In its report of 24 May
2012 the RDOC noted “a purely criteria-based assessment of Auckland-wide benefit
has limitations as a basis for decision-making for parks services” and resolved that
further engagement with the local boards should be undertaken:23
“It has become evident from the work to date that further discussion between
Local Boards and members of the governing body is required in order to reach
a final decision making allocation in an open, consultative and transparent
way. The aspiration to resolve the allocation of decision making for parks
services before the adoption of the Long-term Plan does not allow sufficient
time for appropriate discussions with Local Boards to take place.
The preferred approach is to retain the status quo for decision making for parks
services as an interim measure while further discussion with local boards is
undertaken. Any agreed changes to the current allocation would be
implemented as and when possible, and no later than the 2013/2014 Annual
Plan.”

[55]

A range of possible approaches to determining which parks delivered

Auckland-wide benefit were explored. It was agreed that the Parks, Recreation and
Heritage Forum (“the Forum”), as a sub-committee, would formulate the appropriate
engagement process and compile a schedule of specific parks delivering Aucklandwide benefit prior to consideration by the RDOC.
[56]

Engagement with local boards, councillors and external stakeholders on this

question was undertaken during late 2012 and early 2013. The ATA’s initial allocation
provided the starting point for these discussions.

After further meetings and

consideration by the Forum, the governing body considered a report entitled,
“Clarification of Decision-Making Allocation for Specific Parks” and approved the
following regional parks for which it would be the decision-maker:
(a)

parks subject to Treaty of Waitangi settlement, including:
(i)

identified parks subject to the Treaty of Waitangi settlement
with Ngā Mana Whenua o Tāmaki Makaurau (“the Tāmaki
Collective”);

23

Affidavit of Philip Richard Wilson, sworn 22 September 2017, at 139.

 (ii)

identified land contiguous with parks subject to Treaty of
Waitangi settlement with the Tāmaki Collective;

(b)

parks delivering Auckland-wide benefits, including:
(i)

specified regional parks (parks formerly owned or managed by
the Auckland Regional Council);

(ii)

specific parks or reserves contiguous with regional parks; and

(iii)

other specified parks delivering Auckland-wide benefits (the
Auckland Domain and Motukorea (Browns Island)).

[57]

Decision-making for all other parks was allocated to local boards. Prior to the

allocation decisions the governing body had received formal feedback from local
boards on the proposed decision-making allocation on specific parks. Consultation
with known interested parties was also undertaken. Groups that had previously
indicated an interest in the decision-making allocation for parks were invited to
provide feedback. The governing body recorded in its report of 22 August 2013 those
parks where the decision-making allocation remained “contentious”, or where there
may be future Auckland-wide benefits in those parks becoming parks under the
regional park network. Chamberlain Park was not referred to.
[58]

No similar process was carried out in respect of recreational services or

facilities.
[59]

The allocation table was also reviewed during the development of the 2015

LTP. On 5 November 2014 the Budget Committee considered a report entitled,
“Decision-Making Allocation Review”. This report recommended the draft allocation
of the Council’s non-regulatory decision-making responsibilities for inclusion in the
2015 LTP public consultation materials. The AELB presented its priorities to the
governing body during a meeting at which the 2015 LTP was considered. Again, there
is no evidence of specific consideration of Chamberlain Park during any of these
processes. Mr Wilson observes he is not aware of any public submission made in any

 LTP or annual plan consultation process on whether the decision-making in respect of
Chamberlain Park and/or golfing at Chamberlain Park should be allocated to the
governing body.
Analysis
[60]

To determine whether an error of law was made, a review of the process

actually adopted by the Council is required. With the exception of one point of
statutory interpretation, discussed more fully below, Save CP’s submissions were
directed to this issue.
[61]

Save CP claims the Council erred in law by not identifying Chamberlain Park

as a regional recreational facility in terms of s 17(2)(b). Mr Long submits compliance
with s 17(2)(b) requires the following steps:
(a)

identification of the activity;

(b)

assessment and analysis by the governing body, namely whether the
activity is such that communities across Auckland would benefit from
a regional framework and approach being brought to bear on the
decision; and

(c)
[62]

a decision based on the factors contained in s 17(2)(b)(i)-(iii).

He submits the essence of the principles reflects that some non-regulatory

decisions relative to certain activities might, on examination, be better suited to the
governing body’s wider geographical and community focus. He claims the factors
listed in s 17(2)(b)(i)-(iii) are alternatives; that if one is engaged the governing body
should conclude decisions relating to that activity should be made on an Aucklandwide basis.

He says the governing body gave insufficient examination to this

principle; that the allocation decisions failed to comply with these principles because
they were never considered in relation to Chamberlain Park.
[63]

In his oral submissions Mr Long summarised Save CP’s position in the

following way. It is the governing body’s responsibility to allocate the decision-

 making for non-regulatory activities to either itself or local boards. It must do this in
accordance with s 17(2). That responsibility must be exercised by a local board unless
s 17(2)(b) applies. That provision applies if the nature of the activity is such that
decision-making on an Auckland-wide basis would better promote the well-being of
communities across Auckland. The statute requires the promotion of the well-being
of communities across Auckland where the impact of the decision will extend beyond
a single local board area; effective decision-making aligns with other decisions of the
governing body; or the benefits of a consistent or co-ordinated approach across
Auckland will outweigh the benefits of reflecting the diverse needs and preferences of
the communities within each local board area. To properly apply the principles under
s 17(2), the decision-maker needs to have made a decision on whether or not s 17(2)(b)
applies. To do that, depending on the activity, a positive inquiry into the nature of an
asset which falls within the identified activity area must be made and only then may
an allocation decision be made.
[64]

In summary, Mr Long submits that Chamberlain Park is a unique asset which

required the governing body to undertake an analysis as it did in respect of other assets,
such as the Auckland Domain. On the evidence, he submits it would appear that
Chamberlain Park simply “fell through the cracks and was forgotten”.
[65]

Ms Anderson submits the allocation of parks was a result of a comprehensive

and considered approach to the allocation criteria in s 17(2)(b). She disagrees with
Mr Long’s submission that the factors in s 17(2)(b)(i)-(iii) are alternatives. She says
if this interpretation was adopted, it would necessarily result in a dramatic reduction
in the number of activities which would fall to local boards because most local parks
and facilities attract users from other board areas across Auckland. She also submits
that the plain language of s 17(2)(b) does not support Mr Long’s submission because
of the inclusion of the word “should”.
[66]

I agree with Ms Anderson’s interpretation of s 17(2)(b) for two reasons.

[67]

First, the plain meaning of the provision is instructive. Section 17(2) contains

the principles which the governing body should comply with when making allocation
decisions. Intrinsically, the “principles” is indicative of a permissive, rather than

 mandatory, approach to decision-making. They operate as a guide, rather than a
constraint. Indeed, the language of the principles at s 17(2)(a) and (b) is permissive.
[68]

Namely, the use of the word “should” in contrast to “must” conveys a

discretionary, rather than a mandatory, fetter on the exercise of power. 24 King CJ, in
the Supreme Court of South Australia, had the following to say about the use of the
word “should” in a comparable legislative setting:25
“I am unable to agree that the use of the word “should” indicates an intention
that the principle be mandatory. The word “shall” is prima facie a word of
mandatory import. The same can be said of the word “must” which is now
fashionable with Parliamentary counsel as a synonym for “shall”. I think that
the use of “should” rather than “shall” or “must” indicates that the sense is not
mandatory. The standards specified in the principle are the goal to be aimed
at and the planning authority is to be guided by those standards in considering
an application for consent.”

[69]

Secondly, the inference to be drawn from the section’s plain meaning is not

displaced by reference to the scheme of the LGAC and its wider purpose. As already
discussed, the LGAC carefully balances the competing priorities underpinning its
division of decision-making power. Section 17 is an integral part of the scheme and
represents the compromise between those priorities. Resort to principles guiding the
governing body’s allocation decisions, rather than mandatory rules, reflects the
practical reality that nuanced allocation decisions will often be required to satisfy these
competing priorities. The more rigid approach to the application of s 17, as proposed
by Mr Long, would not provide the necessary latitude for the governing body when
balancing the frequently competing needs of establishing and carrying out its long
term vision for Auckland and, where possible, keeping decision-making in the hands
of local communities.
[70]

Relatedly, there is an implicit acknowledgement in s 16(3) of the LGAC that

some responsibilities of local boards will relate to activities which impact on other
local board areas.

24

25

Re Victim X [2003] 3 NZLR 220 (CA) at [28] per Keith J; New Zealand Federation of Commercial
Fishermen Inc v Minister of Fisheries HC Wellington CIV-2008-485-2016, 23 February 2010 at
[39]-[40].
South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at
38.

 [71]

Against that background I now turn to consider the actual process followed by

the Council and whether it complied with s 17.
[72]

In their written submissions both Mr Long and Ms Anderson placed some

emphasis on the “activity” classification of Chamberlain Park as a recreation facility
or open space activity. Presumably this reflected the evidence that while more detailed
reports and classifications of parks were prepared over the relevant period, no specific
allocation reports were prepared in relation to recreation facilities. No recreation
facilities were allocated as regional facilities.
[73]

I accept that if adopting the Council’s nomenclature in its allocation tables,

Chamberlain Park might be more appropriately classified as a recreation facility. But
Chamberlain Park was, at all material times, included within the list of parks. No
challenge is made to that categorisation. The issue is not whether Chamberlain Park
was properly classified as a park or a recreation facility, but rather whether allocation
to the AELB complied with the principles in s 17. After all, the “activity” or “park”
tags were classification labels adopted by the Council, not by the LGAC. Furthermore,
as the 2012 LTP records, regional sports facilities are generally the responsibility of
Regional Facilities Auckland. That is why no parallel process of identification of
which recreational facilities were regional occurred and why no regional recreational
facilities are listed in the 2012 LTP.
[74]

Counsel also disagreed on the level of scrutiny necessary for the governing

body to discharge its allocation responsibility. Ms Anderson submits s 17(2) requires
allocation of decision-making responsibility in respect of activities such as the
provision of facilities, rather than allocation of particular assets. Mr Long submits that
the decision-making process followed was erroneous because the actual characteristics
of each asset, including Chamberlain Park, were not considered. He submits that
compliance with s 17 requires that level of scrutiny.
[75]

Section 17 of the LGAC does not refer to Council assets. It refers to “non-

regulatory activities”. Neither “non-regulatory activities”, nor “activities”, are defined
in the LGAC. But s 4(2) provides:
“4

Interpretation

 …
(2)

[76]

Unless the context requires another meaning, terms and expressions
used and not defined in this Act, but defined in the Local Government
Act 2002, have the same meaning as in that Act.”

“Activity” is defined in the LGA as:26
“activity means a good or service provided by, or on behalf of, a local
authority or a council-controlled organisation; and includes—

[77]

(a)

the provision of facilities and amenities; and

(b)

the making of grants; and

(c)

the performance of regulatory and other governmental functions”

Plainly, s 17 is concerned with activities such as the provision and operation of

facilities. This means that an error of law cannot be established merely on the basis
that the governing body failed to engage in a detailed inquiry into a particular asset.
In broad terms then s 17 contemplates an assessment and classification of nonregulatory activities, rather than a granular assessment of individual assets. However,
I accept that in exercising its discretion in accordance with the principles in s 17(2)
the governing body will, from time to time, be required to consider and consult on
specific assets, such as parks. As Mr Long submits, it is the specific asset which will
often inform and define the activity under consideration.
[78]

Was such a level of scrutiny necessary in respect of Chamberlain Park? This

issue requires a closer scrutiny of the allocation decisions made by the Council.
[79]

I agree with Mr Long that the initial allocation by the ATA was, to some extent,

tautological in the sense it allocated decision-making in respect of “local” activities to
local boards and decision-making in respect of “regional” activities to the governing
body. But it is also apparent that some consideration of the nature of the decisionmaking, including the scope of the impact it would have, occurred; in other words
whether decision-making would require alignment or integration with other decisions,
and the benefits of co-ordination versus reflecting diverse needs. This approach is
apparent in the initial allocation for both recreation and sports and open space.

26

Local Government Act 2002, s 5.

 [80]

In the 2012 LTP, while there is little specificity as to how nominated assets

were to be treated (in other words whether they delivered Auckland-wide benefits or
not), there is more refined guidance on what non-regulatory activities were within the
ambit of local board and governing body decision-making. But in Schedule 1 regional
parks are classified in a generic way, as parks subject to Treaty of Waitangi settlement
and parks delivering Auckland-wide benefits as regional.
[81]

This indicates that the governing body was primarily concerned with non-

regulatory activities which would impact on local and regional recreational facilities
and parks, rather than the facilities and parks themselves. For example, the use of
local parks, and activities conducted within local parks, were allocated to local boards,
while the use of and activities conducted within regional parks and the acquisition and
divestment of all park land were allocated as governing body responsibilities. This, I
believe, illustrates Mr Long’s point. Without a framework for assessing which parks
are local and which are regional, aspects of this allocation are, perhaps, tautological.
[82]

However, the Council’s analysis did not end there. Further efforts were made

at classifying parks which would deliver Auckland-wide benefits. This is evident from
a number of governing body committee reports published in 2012 and 2013. One such
example is the RDOC’s report which identified a number of issues relating to the
application of s 17(2)(b). The report relevantly observed:27

27

“•

There is not always a correlation between the delivery of Auckland
wide benefits from specific parks and the requirements of Section
17(2) of the Local Government (Auckland Council) Act 2009 (i.e. a
park that is delivering Auckland wide benefits does not necessarily
require governing body decision making in order to “better promote
the well-being of the communities across Auckland …”)

•

There is no clear distinction between local parks and Auckland wide
parks. Both local benefits and Auckland wide benefits are delivered
throughout the open space network and the mix of benefits change
gradually within the ranking from predominantly Auckland wide to
predominantly local.

•

Auckland wide benefits may be quite specific in nature, and individual
parks that largely deliver local benefits may be delivering important
Auckland wide benefits of a specific type. Decision making in
relation to such parks should be primarily focused on delivery of local

Affidavit of Philip Richard Wilson, sworn 22 September 2017, at 140.

 benefits, while ensuring the specific Auckland wide benefits continue
to be delivered.
…
•

[83]

There is a range of individuals, groups and organisation (communities
of interest) from across Auckland who have an interest in either
specific parks, or specific areas of interest that are spread across the
park network. For specific local parks, local boards will be the
appropriate point of contact for communities of interest. However,
where interest spans multiple local board areas, decision making
allocation should enable a single point of contact representing
Auckland Council.”

These extracts reveal that the governing body was not only well aware of the

complexities and tensions implicit in exercising its allocation powers under s 17, but
also that the allocations it made were not simply an exercise in tautology. In particular,
it is plain the governing body was alive to the principle that activities and assets could
not simply be classified by applying one of the considerations contained in s 17(2)(b)
in isolation. It specifically considered that while decisions on specific assets might
have an impact on communities beyond the local board’s geographic area, it did not
follow that in such cases decision-making on an Auckland-wide basis was necessary.
[84]

As noted, the governing body called for further consultation with local boards.

This was undertaken by the Forum which produced its report on 4 June 2013. The
governing body’s report of 22 August 2013 recommended the adoption of the
allocations proposed by the Forum. These related to specific park areas within the
Auckland area and represented the culmination of further investigation work
undertaken over the previous two years. As the report noted:28
“The identification of parks delivering Auckland-wide benefits was made
through an assessment of decision making allocation options for a range of
specific parks against Section 17(2)(b) of the Local Government (Auckland
Council) Act 2009. This assessment was tested with Local Boards and
councillors through both workshops and formal meetings. The proposed
schedule reflects a consensus view with regard to those parks that deliver
Auckland wide benefits.”

28

At 227.

 [85]

These complexities are discussed by Mr Wilson in his affidavit. He makes the

following observations on local versus regional activities:
(a)

The Council’s business includes the provision of many types of assets
supporting leisure, recreation and sport activities. Such assets include
community halls, swimming pools, tennis courts, children’s
playgrounds, fitness centres and parks.

(b)

For those assets which the Council classifies as local (with decisionmaking authority allocated to the local board) it would be extremely
rare for any Council asset to be used exclusively by the community it
is located in. For example, most sports fields are local parks for which
a local board will make decisions. However, sports teams from across
the region will travel to the sports fields for games.

(c)

Members of the community from across Auckland travel to use
playgrounds. An obvious example is the playground at Mission Bay
which is a local board asset.

(d)

West Wave is the only swimming pool servicing West Auckland.
Patrons are drawn across the wider Auckland region although the
decision-making in relation to the asset lies with the Henderson-Massey
Local Board.

(e)

Local boards manage community facilities in their areas. Despite this,
any person from across Auckland can book a community hall to use.

[86]

Mr Wilson observes that he cannot think of an asset managed by a local board

which will be used only by members of that local board’s community. He says the
effect of Save CP’s interpretation would mean that local boards would have no, or very
limited, decision-making rights in relation to most Council assets. This would
fundamentally reduce and undermine the role of local boards and adversely impact
responsiveness at the local level. It would also likely overload the governing body’s
work programme.

 [87]

More importantly, in the context of what is essentially an exercise of statutory

interpretation, such an approach would be contrary to the s 17 legislative scheme and
in particular the s 17(2)(a) principle that the decision-making for non-regulatory
activities should presumptively be the responsibility of local boards.
[88]

It is for these reasons I am satisfied there was no error in the governing body’s

exercise of its s 17 powers in respect of Chamberlain Park. It properly directed itself
to the operation of the section; that there is a presumption of local board responsibility
which is displaced only where decision-making on an Auckland-wide basis would
better promote the well-being of communities across Auckland. This “two tier”
structure was evident in the Council’s allocations which gave effect to the clear
legislative intent.29
[89]

The governing body also correctly approached its allocation on the basis that

the factors contained in s 17(2)(b)(i)-(iii) are not mandatory, but rather are principles
which operate as a guide to the governing body’s assessment of whether decisionmaking on an Auckland-wide basis would be preferable. Additionally, there was an
acknowledgement that in certain cases the benefits of a consistent or co-ordinated
approach would be outweighed by the benefit of reflecting the specific needs of the
local community.

In that regard the governing body properly appreciated the

flexibility implicit in s 17.
[90]

Moreover, while in its LTPs the governing body was predominantly concerned

with activities, the further analysis undertaken in respect of park assets emphasises
that the Council was influenced by the activities conducted by the assets when
deciding whether particular activities required decision-making on an Auckland-wide
basis. It compiled a list of parks which should be allocated to the governing body
because decision-making on an Auckland-wide basis would best promote the wellbeing of communities across Auckland. Plainly the Council was of the view that many
parks, while they may well deliver benefits to communities outside the local board
29

See Local Government (Auckland Council) Bill 2009 (36-2) (select committee report) at 4-5: “the
nature of the functions the local boards ought to have responsibility for should include the range
of activities that communities expect to be delivered by local government … we expect the local
activities that will be the subject of local board plans would be likely to include the operation and
development of local facilities, including sports and recreation centres, swimming pools, and
parks”.

 area, were nonetheless best managed by the local boards. The governing body arrived
at this conclusion after considering the s 17(2)(b) criteria and undertaking workshops
and formal meetings.

Those exercises helped identify what types of activities

undertaken in parks and open space should be within the control of local board and
governing body decision-making, respectively.
[91]

The essence of Mr Long’s submission is that a considerably more detailed and

in-depth analysis should have been undertaken by the governing body before making
its allocation decisions. I do not accept that the governing body was required to
undertake such a comprehensive analysis. That would require the application of a
granular assessment of each of the innumerable parks and recreational facilities dotted
across wider Auckland. Such a task is neither contemplated nor required by s 17.
[92]

The decision to allocate non-regulatory decision-making to the local board is

consistent with s 17(2), particularly when viewed against the backdrop of a succession
of reviews and consultation undertaken by the governing body and its consultants.
[93]

For these reasons this cause of action must fail.

The AELB, Chamberlain Park and the background to the second, third and
fourth causes of action
Introduction
[94]

The second, third and fourth causes of action all relate to decisions made by

the AELB and the processes it followed in arriving at those decisions. In summary,
Save CP’s claim is that the AELB failed to collaborate and consult with other local
boards under s 16(3) of the LGAC, predetermined its decision and failed to consult on
the case for change.
[95]

Before considering each of these claims it is necessary to return to the

background, some of which has already been discussed.

 Early steps
[96]

Peter Haynes and Shyrel Burt have given affidavits covering their involvement

relative to Chamberlain Park. Dr Haynes has been the chair of the AELB since
November 2010 and Ms Burt is a principal policy analyst at Council.
[97]

It was the Longdill and Associates report which, in 2011, alerted the Council

to the pressure on sports fields in the Auckland region. Discussions between the
Council and the AELB led the former to examine the local board’s capacity to
accommodate sports fields which, in turn, led the AELB to examine the open space at
Chamberlain Park as part of its wider review.
[98]

Dr Haynes accepts that during 2013 Chamberlain Park was on the AELB’s

“radar”. It learned that from 1 July 2013 the lease over Chamberlain Park would
expire and from that time it would be managed by the Council. At a meeting of the
AELB on 4 December 2013 Sharon Rimmer, the Sports and Recreation Partnerships
Manager for the Council, discussed Chamberlain Park but, it seems, this was only in
the context of the golf course’s existing use.
[99]

However it seems inevitable the AELB was aware that with the change of

operational rights, an opportunity was created to include Chamberlain Park in its
consideration of the AELB area’s open space needs. At some point in 2013 the AELB
asked Council policy officers to consider what other uses of Chamberlain Park might
be possible. Dr Haynes says this was not because the AELB had made its mind up,
but rather because the local board wished to have a proper understanding of the options
for open space within its boundaries.
[100] Relatedly, a consultancy firm named O’Connor Sinclair completed two reports
for New Zealand Golf in July 2013. One of these was an Auckland Golf Facility
Strategy dated 15 July 2013, commissioned for the purpose of providing insight into
the challenges and opportunities facing those managing golf facilities in Auckland.
The Auckland report analysed the utilisation of various golf facilities, being the
number of rounds played as a percentage of total capacity of golf games around
Auckland. The reports drew on evidence collected from a survey of 393 golf clubs.
Because Chamberlain Park did not respond to the survey O’Connor Sinclair gathered

 information through the club’s website and Dotgolf, with averages from the rest of the
Auckland region applied to it. The other clubs which also did not respond were treated
similarly. On the basis of this data, O’Connor Sinclair estimated that one per cent of
Auckland’s rounds of golf were played at Chamberlain Park. This equated to a
utilisation rate of nine per cent.30 Generally, the Auckland report observed that:31
“… utilisation of golf course across Auckland is very low at 23%. There is an
oversupply of relatively homogenous golf services and facilities and therefore
an oversupply of rounds at these facilities.”

[101] The Auckland report also noted that because Auckland utilised its residential
areas more intensively, open space would become more important and that in:32
“… a high population market, where many other sport facility assets have
multiple uses … and/or considerable junior participation … there is a risk for
golf that a perception of golf clubs as large area, low utilisation facilities
emerges.”

[102] On 19 February 2014 an AELB workshop took place at which Chamberlain
Park was discussed. Ms Rimmer was again present. A minute of the instruction shows
what was sought.33
“Sharon Rimmer – Sports & Recreation Partnerships Manager was in
attendance to discuss Chamberlain Park.
•

Understanding of current provision of sports fields, confirm the Boards
priorities for sport and recreation & review of golf provision at
Chamberlain Park

•

6-8 week response

•

Come back to Board at the end of April to present the assessment and
discuss options

•

Future options were discussed such as restoration of Oakley Creek and a
possible location for the Chinese gardens.”

[103] At about this time a number of other reports on the possible development of
Chamberlain Park appear. For example, there is a short Jasmax “Concept Design
Report” dated October 2013. While its provenance is unclear, it proposed a nine-hole

30
31
32
33

This figure was the subject of some debate, which I return to later.
Affidavit of Richard Quince, sworn 10 August 2017, at 196.
At 215.
At 155.

 course with other possible amenities developed on the balance of the land. An
O’Connor Sinclair report, apparently requested by the Council and dated 28 February
2014 records a meeting with Council staff on 29 January 2014. The report makes a
number of references to the draft AELB Plan for 2014-2016. In its project purpose
section it records:34
“Auckland Council Parks and Recreation and Albert-Eden Local Board are
seeking guidance on the best recreational use of the land associated with
Chamberlain Park, in alignment with the draft Local Board Plan. It is rare that
an opportunity arises to develop 32 hectares of land for public recreation and
therefore it is immensely important to ensure the proposed development
optimises the land use, reflecting the peoples’ needs and enhancing the local
community.”

[104] O’Connor Sinclair considered a critical preliminary step was to know more
about the activities at and the characteristics of Chamberlain Park. Their proposal to
undertake this work for the Council was not accepted.
[105] The next relevant event was on 5 May 2014 when Ms Burt and another
Principal Policy Analyst at the Council, Rebecca Eng, were asked to undertake an
assessment of Chamberlain Park by the Manager of Community Policy and Planning.
Ms Burt says she was asked to undertake this assessment as a result of the 19 February
2014 workshop. At the briefing meeting, Ms Burt and Ms Eng were advised the AELB
had asked for Chamberlain Park to be assessed because:
(a)

the AELB wished to address both the low open space provision in the
AELB area, and to identify ways to improve the quality of existing open
space;

(b)

the AELB had received the Longdill and Associates report which
identified a shortfall in sports fields in the Auckland region;

(c)

the AELB had received the O’Connor Sinclair reports relating to both
Chamberlain Park specifically and Auckland golfing facilities
generally, identifying an oversupply of homogenous golf courses and a
lack of diversity in golf facilities; and

34

At 160.

 (d)

the draft 2014 AELB Plan identified a number of ways to improve
connections and access to open space which included diversifying open
space at Chamberlain Park.

[106] Ms Burt adds that AELB made specific requests as to what options the Local
Board wished to be included in the report and, in particular, to investigate whether
Chamberlain Park could accommodate a nine-hole golf course, a driving range, a
Chinese garden, an aquatic centre and eight or nine sports fields. They were asked to
prepare a plan setting out how these facilities might fit.
[107] Ms Burt says that she and Ms Eng were guided in their assessment by the
hierarchy of strategic plans in local government which inform decision-making. The
Council had both a Parks and Open Spaces Strategic Action Plan and an Open Space
Provision Policy setting out what parks provide and a framework of actions to deliver
a quality network of open space, and guiding local boards and Council on the provision
of open space respectively. They also drew on the O’Connor Sinclair reports, a report
on sport and recreation in Albert-Eden, an Auckland Council golf course provision
discussion paper and open space provision maps.
[108] At about this time there also appears to have been some email communication
involving two of the AELB board members and Ms Burt and Ms Eng. In May 2014
Board Member Easte sent “some preliminary thoughts” about the reconfiguration of
Chamberlain Park. And a few days later, Dr Haynes raised the question of whether
passive recreation could also be included in any analysis.
[109] On 4 June 2014 Ms Burt and Ms Eng produced a Development Options Report
(“the Eng/Burt Report”). The salient aspects of this document are included in its
executive summary:35
“The Albert-Eden Local Board area has a low open space provision and
limited opportunities to acquire new open space. Existing open spaces need
to be used in ways that accommodate the needs of a growing and diversifying
community. There is also a need to identify ways in which the quality of
existing open spaces can be improved. …

35

Affidavit of Shyrel Deidre Burt, sworn 15 September 2017, at 114.

 In order to address some of these issues, the Albert-Eden Local Board briefed
staff to consider development options for the future use of the Chamberlain
Park Golf Club. …
The initial concept plan incorporates a 6-12 hole beginner’s golf course,
driving range, “Starting New at Golf” (SNAG) coaching area, playground, a
recreation facility, formal gardens, and six full sized sports fields. …
Staff propose that the initial concept plan be included in the upcoming AlbertEden Local Board Plan consultation, to provide the community an opportunity
to give feedback on the range of potential opportunities, and suggest new
ideas, for future development. …”

[110] The report also “assumed that a more detailed environmental and cost benefit
analysis would be carried out in future stages of work should the local board wish to
progress with a redevelopment proposal for the site.”36
[111] Significantly, at the AELB’s meeting of 4 June 2014, the Board moved to
receive the report and the initial concept plan noting that it represented “a starting
point for a discussion about alternative uses of Chamberlain Park” but that it did not
“represent a developed plan”.37 The AELB resolved to consult with the community
on the initial design suggestions during the draft AELB Plan consultation period. This
was between 7 July and 6 August 2014. The Board also requested that Community
and Cultural Policy officers commence the development of the Chamberlain Park
Master Plan, following the initial consultation phase, setting out the various options to
be consulted on with the community.
Initial consultation on the draft AELB Plan
[112] A pamphlet containing a summary of the draft AELB Plan was delivered to
every household and business in the local board area. It was made available at other
local amenities including libraries. Relevantly, it stated that over the following three
years the AELB wished to investigate a programme of upgrading sports fields and
playgrounds and “review the use of Chamberlain Park and consult with the community
on options for maximising its recreational use.” The concept plan was made available
online.

36
37

At 116.
Affidavit of Richard Quince, sworn 10 August 2017, at 189.

 [113] The pamphlet called for submissions online, or by mail or email between 7 July
and 6 August 2014. It also advised that hearings would be held between August and
September 2014 to consider all submissions and for finalising the Local Board Plan,
which would be adopted by 31 October 2014.
[114] It was through this process that some of the individuals now involved with
Save CP learned of the AELB’s plans and began their individual engagement with the
Local Board.
[115] A community meeting was held on 16 July 2014 to discuss the draft plan.
Mr Quince, who would later become the treasurer of Save CP, was present. In his
affidavit he describes the meeting, recalling Dr Haynes commenting that strong
opposition was expected to the proposed Chamberlain Park redevelopment. He also
says Dr Haynes and Mr Easte quoted the O’Connor Sinclair 23 per cent utilisation
figure.

He says that after the meeting he approached Dr Haynes to discuss

Chamberlain Park but was simply advised that “golf courses have a 23 per cent
utilisation rate”.
[116] Submissions totalling 829 were received on the draft AELB plan. Among these
was a submission made by Mr Quince on behalf of the Chamberlain Park Golf Club
Inc, the men’s club. Mr Quince’s submission emphasised the various open space areas
within the AELB’s boundaries, including the One Tree Hill domain and Western
Springs. He also emphasised that the figures relied on in the O’Connor Sinclair report
were incorrect because they did not account for the rounds played by casual golfers.
When these were accounted for the total number of rounds played per year was closer
to 50,000 which translates to a utilisation rate of close to 50 per cent.
[117] On 28 August 2014 the Council staff involved in the consultation on the draft
AELB plan presented a report on the key themes emerging from the submissions. At
this meeting the Board received further submissions, including from Mr Quince. The
report observed:38
“The review of the use of Chamberlain Park appears to be a much debated
initiative. The Chamberlain Park Golf Club Incorporated gathered 534
38

Affidavit of Shyrel Deidre Burt, sworn 15 September 2017, at 296.

 signatures objecting to the proposed changes. On the other hand, a significant
number of submitters expressed support for investigating possible alternative
uses for the Chamberlain Park Golf Course.”

[118] Overall a high number of responses in support of the review of the use of
Chamberlain Park to maximise its recreational use was noted.
[119] A further meeting was held on 17 September 2014 for the purpose of providing
a summary of the public submissions on the draft plan. The report records that a key
theme arising from the feedback was to “investigate possible uses for the Chamberlain
Park, including a status quo option”. The report observed:39
“While the investigation of possible alternative uses for Chamberlain Park
golf course gleaned a high level of support, this initiative also attracted strong
opposition. As noted below, it is therefore recommended that the local board
investigation all for the site, including the retaining current use.”

[120] It also suggested further consideration of other matters, including a “do nothing
option in the investigation of options for future recreational uses for Chamberlain Park
(i.e. retaining the park as an 18-hole golf course).” Consideration of whether to
include Rawalpindi Reserve in the Chamberlain Park review was also suggested.
[121] The AELB then resolved to adopt the local board plan on 15 October 2014.
Relevantly, the Plan stated:40
“We have Auckland’s lowest levels of open space provision, with only 2.8
hectares per 1000 residents.
Our projected population growth and planned housing intensification means
we need additional parks and reserves. We cannot readily increase the amount
of open space in our area because of budget constraints and lack of suitable
land, but will continue to advocate strongly for this over the next three years.
… We are committed to making our existing 109 parks and reserves the best
they can be.
…
Review of Chamberlain Park
… Because of the critical shortfall of open space in Albert-Eden, we are
reviewing the use of the park with the aim of maximising its passive and active
recreational use. We will develop a masterplan in consultation with the
39
40

Affidavit of Richard Quince, sworn 10 August 2017, at 324.
At 365.

 community, which will also include the adjacent Rawalpindi Reserve and the
Western Springs Garden site.”

[122] Also referred to in the plan was the “Chamberlain Park Master Plan
Development”. This was recorded as a “key initiative”, with the AELB aiming to
achieve “more opportunities for more people to enjoy [its] parks and reserves”.
[123] The recommendation arising out of the 17 September 2014 meeting, that
Rawalpindi Reserve be included in the review, was adopted. No mention was made
of including a “do nothing” option in respect of the Chamberlain Park review.
[124] Meanwhile, Council Policy Analysts began preparing the Master Plan, which
the AELB had first requested at a meeting of 4 June 2014. Jasmax was engaged to
assist with preparing the Master Plan, with a consultation period held through to
December 2014.
Further consultation and the preparation of the Master Plan
[125] The consultation process involved four key activities: calls for specific
feedback from key stakeholders (including interested persons outside the AELB’s
area), an open day, a workshop for golf users (including the Chamberlain Park men’s
and women’s clubs) and an online survey.
[126] Workshops were held with groups the AELB considered were key
stakeholders. These included the Auckland-Chinese Garden Association, Regional
Facilities Auckland, Auckland Cricket, Cycle Action Auckland and Sports Auckland.
[127] A workshop was also held for golf users including a meeting in November
2014 when the clubs met with the Jasmax team to discuss the Master Plan. A
submission was received from New Zealand Golf, Auckland Golf and both
Chamberlain Park golf clubs. This was supportive of alternative golf facilities and
investment in improving the facility. New Zealand Golf supported retaining as much
as the golfing footprint of Chamberlain Park as possible, while the remaining three
entities supported the maintenance of an 18-hole golf course.

 [128] The open day took place on 1 December 2014. The public was notified through
flyers at Chamberlain Park, a mail drop in the neighbourhood, notices on the AELB
Facebook page, notices in the Central Leader newspaper and on the Neighbourly
website. Amongst other things an email was also sent to all those on the AELB’s
database.
[129] At the open day a number of posters, printed on A1 paper, were placed around
the Club. These explained the development of the Master Plan and the process of
consultation and design which would take place. One poster outlined the opportunities
and constraints of Chamberlain Park. Six presented a range of options under different
categories and invited members of the public to indicate their preference by placing
coloured stickers on the activity. The details of the posters follow:
(a)

Golf activities: This presented eight different options for golf activities
at Chamberlain Park, ranging from 18-hole courses, a short six, nine or
12-hole course and a mini-golf facility and driving range.

(b)

Sports: This sought views on eight offerings including football, cricket
and baseball.

(c)

Everyday activities:

This poster presented seven activities which

Chamberlain Park could provide including walking, cycling, a
barbeque area and an off-leash dog exercise area.
(d)

Play spaces: This inquired of submitters what they most wanted to see
at Chamberlain Park, such as nature play, school age play, an obstacle
course and other options.

(e)

Cultural activities:

This asked what cultural activities and

environmental outcomes submitters wished to see at Chamberlain Park,
including a traditional Chinese garden, a performance space,
community planting days and art integration.

 (f)

Catch all: The final poster inquired whether the AELB had omitted
any activity and whether there were any particular activities submitters
did not want to see at Chamberlain Park.

[130] It is apparent that two aspects of this process agitated Save CP. First, there
appears to have been a miscommunication about the fact that Chamberlain Park would
be closed for play on the afternoon of the open day. This was to permit those interested
to walk around the course and inspect the facilities. Save CP complained that without
players on the course the impression given was that Chamberlain Park, as a golf
course, was underutilised. Secondly, the second poster which asked what sporting
options submitters might like to see did not include golf as one of the sporting options.
[131] At the end of the open day, Jasmax took photographs of each of the posters in
order to assess the public reaction. The 18-hole option was, by some margin, the next
most popular of the golf activities proposed. Meanwhile, “other” was the most popular
sports option. And while volleyball, tennis, kayaking, and hockey all featured, golf
was the activity which attracted the most votes. On the last poster, which asked
whether the AELB had missed anything, many called for the 18-hole course to be
retained as is. Others, although fewer, called for a change including a hockey astro
turf, a multi-use facility with nine holes and a skate park.
[132] The online survey ran from November 2014 to January 2015. The original
intention was to complete the exercise by December. However, that period was
extended due to the volume of feedback. The online survey asked the same questions
as those posed on the six open day posters with one exception. Rather than inviting
comment on which activity people most wanted to see, participants were asked to
select each golfing activity they preferred. Originally, the option of an 18-hole golf
course was not included when the survey went live. However, this option was
promptly added following concerns raised by Mr Quince. As with the open day there
was also a generic question on any other activities which submitters might wish or not
wish to see at Chamberlain Park.
[133] The AELB received 1,365 submissions online. These were consolidated into
a summary document. In respect of the question seeking views on golf activities 42

 per cent (or 444 submitters) identified an 18-hole course as the golfing activity they
would like to see at Chamberlain Park. The next most popular options were a driving
range (36 per cent or 382 submitters) and a nine-hole course (27 per cent or 291
submitters).
[134] In respect of the second question, which asked what sports submitters would
like to see at Chamberlain Park, 55 per cent or 540 submitters selected “other”. Mr
Quince suggests that the write-in comments indicate the support was largely for golf.
The next most popular options were the multi-use artificial turf (37 per cent) and
football (30 per cent).
[135] For the question about every day activities 59 per cent (or 606 submitters)
selected walking, 45 per cent indicated they would like to see a Chinese garden and
40 per cent preferred a performance space.
[136] Ms Burt summarised the results of this consultation process as follows:41
“What we found from the consultation was that people wanted golf to still be
provided at Chamberlain Park, but to be improved. People also wanted
community access to the park, a wider range of sports, Meola Creek to be
restored, and a Chinese garden, museum and performance space to be
provided.”

[137] After this the Council, assisted by Jasmax, developed design objectives to
prepare scenarios for consultation.

Council Policy Analysts prepared some 10

scenarios and presented these to the AELB at a workshop on 25 March 2015. From
these, the AELB selected four which it considered best fitted the design objectives. In
terms of golf it was incorrectly recorded that New Zealand Golf preferred a nine-hole
course. As previously noted, New Zealand Golf had actually indicated its preference
for the retention of as much as the golfing footprint at Chamberlain Park as possible.
However, the other three interest groups’ preferences for an 18-hole course were
correctly recorded.
[138] Council officers asked the AELB what golfing configuration they preferred; a
nine, 12 or 18-hole course. One board member suggested the AELB should consult

41

Affidavit of Shyrel Deidre Burt, sworn 15 September 2017, at [46].

 with the public. Another suggested the AELB should reflect on its initial purpose in
redeveloping Chamberlain Park and, in particular, the promotion of passive recreation
and supporting open space provision within the local board area.
[139] It was agreed that a formal report would be provided at an extraordinary
business meeting scheduled for 22 April 2015. The four options selected by the AELB
were presented as a Master Plan Options Report to the AELB at that meeting:
(a)

Scenario One: Mostly golf with a reconfigured 18-hole golf course;

(b)

Scenario Two: A nine-hole golf course, driving range and practice area;

(c)

Scenario Three: A smaller redesigned 18-hole golf course and an area
providing three multi-use sports fields and carparking; and

(d)

Scenario Four: A nine-hole golf course and/or driving range and/or
practice area, with the area on the eastern side providing two multi-use
sports fields, an aquatic centre and carparking.

[140] The report observed the following in relation to the options presented:42
“While all scenarios include some common features they also provide enough
variation to ensure the public are able to comment on a range of different
scenarios with different opportunities for recreation.”

[141] It is noteworthy that all scenarios involved:
(a)

development of the western end of Chamberlain Park for passive
recreation with a barbecue area, a playground and restoration of the
Meola Creek;

(b)

a Chinese centre incorporating a Chinese garden, performance space
and theatre;

42

At 1042.

 (c)

a walking and cycling path through the eastern end of the site providing
access to the park from the Northwestern Cycleway and St Lukes Road;
and

(d)

golfing activities of some description.

[142] The AELB approved in principle a redesign of Chamberlain Park at this
meeting when it approved the Master Plan Scenarios for consultation (“the decision in
principle”). Two members proposed and seconded amendments to the AELB’s
resolutions. These were focused on ensuring that costings were known before public
consultation; that the transport-related costs were known and that Auckland Transport
would be supportive of the transport-related aspects; and that the status quo that is the
retention of the golf course in its present configuration, be explicitly included. Those
amendments were defeated.
[143] Thus the way was paved for consultation on the remaining four scenarios and
a decision on the Master Plan.
Consultation on the four scenarios and the Master Plan
[144] This phase of the consultation was advertised in the same way as the first.
Invitations were issued to an open day on 18 May 2015 at Western Springs. Submitters
were directed to the same website to complete a survey. At the open day, posters were
displayed.
[145] Notably, some of the scenarios consulted on differed from those which the
AELB had decided on at its meeting on 22 April 2015. It is uncertain why this was
and Ms Burt does not address the issue in her affidavit. The difference was that
Scenario Two was not presented as a nine-hole option. Instead it was presented as an
18-hole option. Thus, where previously the public had been consulted on two 18-hole
options and two nine-hole options, now only one nine-hole option was presented.
Save CP regards this unexplained change as material because, it says, it effectively
split the vote by pitting three 18-hole options against a single nine-hole option.

 [146] 263 submissions were received online. Ms Burt says the Council team found
all four options were popular and while there was no obvious preference, Scenario
Four, the nine-hole golf course, attracted the most support. There was also a strong
contingent of submitters who expressed their displeasure at any change and called for
the retention of Chamberlain Park as an 18-hole course.
[147] On 5 August 2015, policy analysts presented a report to the AELB on the
results of the consultation process. Scenario Four was recommended in principle.
However, it was also noted that three policy projects; the Sports Facilities Network
Plan, an investigation into the provision of swimming pool space in western Auckland,
and an investigation of the long-term Council ownership of golf courses, could inform
the final decision. Salient observations included:43
“[Consultation on possible redevelopment] was in response to low utilisation
of the Chamberlain Park Golf Course and increasing operational costs. The
lack of open space provision in the local board area and growing pressure on
neighbouring sports field capacity were other key considerations.
… The feedback received in both phases of consultation has indicated there is
a desire for change at Chamberlain Park and the community want to see a
wider variety of recreation opportunities at the park.
Of all the options, Scenario Four responds to the case for change as well as
providing more open space, a wider range of sports and greater community
use of Chamberlain Park. This scenario received the highest level of
community support.”

[148] One matter which Save CP focuses on is the report incorrectly noted that while
35 per cent of submissions opted for Scenario Four, 30 per cent supported an 18-hole
course. That is incorrect because 40 per cent of participants selected Scenarios One
to Three. Moreover, 25 per cent selected “None of the above” with many submitters
preferring retention of the status quo.
[149] The report then turns to consider each of the scenarios. Scenario One and
Scenario Two were not recommended because they did not provide for increased open
space, a wider range of sports or greater community use of the area. The report also
commented that Scenario One did not provide an improved golf experience to address
the currently low levels of utilisation and expressed concerns about the scenario’s

43

At 1175.

 financial viability. Meanwhile, Scenario Two was not recommended because it “may
not have widespread appeal to existing golf users”. Finally, Scenario Three was not
recommended because it had the lowest level of public support, would not increase
golf revenue streams and might not appeal to existing golf users.
[150] Thus it was considered that Scenario Four represented the highest level of
satisfaction of all these objectives. The report noted that with a total par of 35 and a
moderate to high level of difficulty, it should appeal to the existing golf user base.
[151] Mr Quince attended the AELB meeting on 5 August 2015.

He made

submissions on behalf of the Chamberlain Park Golf Clubs.
[152] When the proposal was put to the meeting four board members voted in favour
and three against. One abstained.
[153] Jasmax then prepared the Master Plan which was approved in August 2015.
Second cause of action: Did the AELB fail to collaborate and co-operate with
other boards?
Introduction
[154] Save CP’s second cause of action puts in issue the extent of collaboration and
co-operation between the AELB and other local boards when making decisions about
Chamberlain Park. It claims the AELB erred in law by failing to meet the requirements
of s 16(3) of the LGAC because it did not collaborate or co-operate with one or more
local boards.
[155] Section 16 is reproduced in full below:
“16

Decision-making responsibilities of local boards
(1)

Each local board is responsible and democratically
accountable for—
(a)

the decision making of the Auckland Council in
relation to the non-regulatory activities of the
Auckland Council that are allocated to the local board
in accordance with section 17; and

 (b)

identifying and communicating the interests and
preferences of the people in its local board area in
relation to the content of the strategies, policies,
plans, and bylaws of the Auckland Council; and

(c)

identifying and developing bylaws specifically for its
local board area, and proposing them to the governing
body under section 24; and

(d)

the agreement reached with the governing body (as
set out in the local board agreement) in respect of
local activities for its local board area.

(2)

In carrying out the responsibilities described in this section, a
local board must comply with the requirements of sections 76
to 82 of the Local Government Act 2002 as if every reference
in those sections to a local authority were a reference to a
local board.

(3)

In carrying out the responsibilities described in this section, a
local board should collaborate and co-operate with 1 or more
other local boards in the situations where the interests and
preferences of communities within each local board area will
be better served by doing so.”

Submissions
[156] Mr Long submits s 16(3) contains a statutory acknowledgement that there will
be occasions when collaboration and co-operation with other local boards is desirable.
He says it is not appropriate for a local board to approach matters in a
compartmentalised or isolated way, without regard to other boards if that would serve
the joint interests of the communities involved.

He describes the provision as

“directive”; one of the few “connective pieces of tissue” in the LGAC which gives a
wider perspective to the operation of local boards. He says it ensures short sighted,
myopic decisions are not made by local boards in the parochial service of their own
interests where there may be wider ramifications for other boards.
[157] Mr Long adds that because there is no hard evidence the AELB consulted with
other local boards in relation to its decisions on Chamberlain Park, the only “excuse
for non-compliance” is that this was not a situation caught by s 16(3). He says that on
the material before the Court the decisions for the AELB in relation to Chamberlain
Park were quintessentially ones intended to be covered by that section.

 [158] Ms Anderson emphasises that s 16(3) uses permissive language; the word
“should” is used in respect of those responsibilities requiring collaboration and cooperation with other local boards. She adds that the efforts undertaken by AELB
should be seen in a context where consultation with interested communities who may
sit outside the local board area was carried out. She thus submits the AELB met its
responsibilities in terms of the language of s 16(3).
Analysis
[159] Two questions arise for resolution under this heading. These are:
(a)

What type of collaborative requirement does s 16(3) place on local
boards? And

(b)

Did the AELB discharge this requirement in respect of its decisions on
Chamberlain Park?

[160] To a considerable extent I have already addressed the first question in my
discussion on the allocation decisions. By reference to authority I determined that the
use of the word “should” is indicative of a permissive, rather than mandatory, approach
to decision-making. I do not consider the use of the word “should” in s 16(3) is
materially distinct from its use in s 17(2) or that a different conclusion is available.
[161] Despite Mr Long’s submissions to the contrary, in my view the use of the word
“must” in s 16(2) provides a helpful juxtaposition. That provision requires local
boards, in carrying out their s 16 responsibilities, to comply with the requirements of
ss 76 to 82 of the LGA. It has the effect of making compliance with those sections
mandatory. By contrast, I consider the use of the word “should” in the same section
evinces an intention on the part of the legislature to incorporate a more permissive
requirement in s 16(3).

No doubt, the discretion is not unfettered.

It will

circumstantially be an error of law to fail to collaborate and co-operate with other local
boards where the interests and preferences of communities within each local board
area will be better served by doing so. That is because, as Mr Long submits, s 16(3)
is one of the few tools in the LGAC framework (outside of allocation to the governing
body under s 17) which ensures a wider than local perspective be adopted when local

 government decisions are made. That is entirely consistent with the scheme of the
LGAC. It represents an important element or “connective tissue” between the twotier decision-making system established under the legislation. However, the language
of s 16(3) is clear; it provides some margin available to local boards when determining
whether collaboration and consultation is necessary.
[162] This leads naturally to the second question for resolution and that is whether,
in fact, the AELB discharged this requirement in respect of its decisions regarding
Chamberlain Park.
[163] On this point I also agree with Ms Anderson. It is evident from the extensive
factual background set out above that the AELB was aware that in relation to decisions
affecting Chamberlain Park, there were stakeholders from outside its board area.
While Mr Long is correct that there is “no hard evidence” of collaboration or cooperation with other local boards, the core policy of s 16(3) is to ensure the interests
and preferences of communities across Auckland which are affected by the decision
of one local board are heard and taken into account in decision-making. Collaboration
and co-operation with other local boards is only required where it will serve the
interests and preferences of communities within those local board areas. It may not
be necessary where the local board is able to achieve that policy without such
collaboration and co-operation.
[164] An examination of the AELB’s consultation processes reveals there was no
need for collaboration and co-operation with other local boards. That is because the
process adopted included workshops and meetings with specific Chamberlain Park
users and interest groups, as well as regional and national golfing interest groups and
other stakeholders which included the Auckland Chinese Garden Association,
Regional Facilities Auckland, Auckland Cricket, Cycle Action Auckland, Sports
Auckland and the Auckland Zoo. Plainly the latter groups were ideally placed to
present a regional, Auckland-wide perspective.
[165] I agree with Ms Anderson when she submits that it is difficult to see how the
interests and preferences of these wider communities, in particular the national and

 regional golfing community, could have been better served by consultation with
particular local boards rather than their direct constituents.
[166] Furthermore, Mr Long’s submission does not identify which other board or
boards might properly have been consulted. There are 21 local boards. If players from
outside the Albert-Eden area are drawn from across the greater Auckland region, was
the AELB bound to engage them all? And, if so, in respect of what issue? That cannot
be what s 16(3) in these circumstances requires.
[167] In fairness to Mr Long’s argument, primarily advanced in his reply
submissions, there is one other local board which, if consulted, might have provided a
useful dimension. That is the Kaipātiki Local Board. Located within that Board’s area
is the Takapuna Golf Course which is another 18-hole public course. Mr Long submits
that a consequence of the AELB’s decision to create a nine-hole course at Chamberlain
Park is the Kaipātiki Local Board is now the only provider of a 18-hole public course
in Auckland. The potential effects on that Board may be several including increased
usage by those disinclined to play on a reconfigured nine-hole course at Chamberlain
Park as well as the possible limitations on that local board’s ability to develop its own
site.
[168] However, I do not consider that omission, such as it was, gives rise to an error
of law. First, there is nothing to suggest, in principle or in fact, that the decisions of
the AELB constrained the Kaipātiki Local Board in this way. 44 Secondly, as already
noted, among the stakeholders consulted by the AELB included groups which would
have been aware of the golfing landscape across the Auckland region.
[169] Moreover, the decisions made on 5 August 2015, when the AELB adopted the
Master Plan, were not to be finalised under the Sports Facilities Network Plan until an
investigation of the long-term Council ownership of golf courses was completed. This
is because the AELB was aware the results could inform its final decision. These
features reinforce the clear impression that the AELB acted in a way which served the
44

Indeed, the Council’s Golf Facilities Investment Plan notes it owns the land on which 10 golf
courses operate, and manages three other Crown-owned courses. The report also notes that
between 2021 and 2026, over half the golf course leases are due to expire. A number expired in
2016 and 2017.

 interests and preferences of communities within other local board areas. For these
reasons, specific collaboration and co-operation with other local boards was not
required.
[170] I am satisfied that the second cause of action must fail.
Third cause of action: Did the AELB approach its decision-making with a closed
mind?
Introduction
[171] Save CP’s third cause of action alleges the decision to change the use of
Chamberlain Park was predetermined by the AELB. Save CP says the AELB made
up its mind to change Chamberlain Park from what it was to something else before
February 2014, when it directed preparation of the Eng/Burt report. Save CP also
alleges predetermination at all material times from that point. It says the AELB
approached its task with a closed mind to maintaining the status quo.
[172] The Council’s position is predetermination is not established on the evidence;
that at no time until the decision in principle did the AELB close its mind to the
possibility of retaining the status quo. It maintains any position the AELB held from
February 2014 was a legitimate predisposition and until the decision in principle, an
appropriate point to make a decision, the AELB was simply reviewing and consulting
on options.
[173] There was some disagreement between Mr Long and Ms Anderson as to
whether “status quo” is a reference to the retention of Chamberlain Park in its present
configuration or the retention of an 18-hole course, albeit with a different
configuration. For the purposes of this decision I accept Mr Long’s submission that
“status quo” means leaving the golf course as it is or, at the least, not changing the
present configuration in a material way. That determination has consequences which
I shall return to later in my analysis of this cause of action.

In my view the

interpretation pressed by Mr Long represents the most natural meaning of the words.

 Predetermination – legal principles
[174] Helpfully counsel are largely agreed on the legal principles which apply in
cases where predetermination is alleged.
[175] A finding of predetermination requires that any predisposition of the decisionmaker is, in effect, a fait accompli.45 As Tipping J stated, anyone challenging a
decision on the basis of predetermination “is required to show actual predetermination
or fettering rather than the appearance of the same”.46
[176] This recognises a contrast with the notion of legitimate predisposition. As Kós
J stated, “where Parliament determines that a decision should be made by a Minister,
a person of inherently political complexion, it is unavoidable that that person will be
influenced by policy and political considerations … it must be taken to have accepted
that the decision-maker will bring a policy perspective to his or her determination, and
with it a probable predisposition on the merits.”47
[177] In the context of local authority decision-making, Duffy J put it this way:48
“There is nothing objectionable about councillors holding preliminary or “in
principle” views on decisions, provided when it comes to making the actual
decision, they do so with an open mind to other alternatives. Indeed it is
always likely to be the case that members of local authorities will hold
particular views on certain issues. The effect of local body democracy is that
persons are voted into office holding certain views. What is important is that
when they come to make decisions they follow a thought process that
recognises a change of mind may eventuate.”

[178] More generally Philip Joseph observes “some decision-makers, such as …
local authorities or planning bodies, routinely announce policy preferences and
approach their decision-making so as to promote their policies. Their decisions remain
unimpeachable, provided they retain an open mind, are amenable to persuasion and
do not commit to a particular outcome in individual cases.”49 That requires, as Lord

45

46
47

48
49

Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters,
Wellington, 2014) at [25.5.5].
Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32 (HC) at 47.
Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474
at [131], [133].
Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR 799 (HC) at [117].
Philip Joseph, above n 45, at [25.5.5].

 Thankerton stated in Franklin v Minister of Town and Country Planning, that the
decision-maker’s mind was not “so foreclosed that he gave no genuine consideration”
to the material before him.50
[179] Baragwanath J has provided perhaps the most succinct statement of what is
required:51
“I am satisfied that “open minded” in contexts such as the present does not
mean “without predisposition” but “prepared, despite predisposition, honestly
to consider whether to change its mind”.”

[180] Much of this is explicable by the fact predetermination is conceptually distinct
from an allegation of bias.52 While predetermination is concerned with “closed mind”
decision-making, bias is concerned with public perceptions as to impartial decisionmaking.53 As the learned authors of Administrative Law state:54
“The significance of the conceptual distinction between predetermination and
the apprehension of bias lies in the fact that administrative decision-makers,
unlike judicial decision-makers, will often, quite rightly, be influenced,
formally or informally, in their decision by policy considerations. They will
naturally approach their task with a legitimate predisposition to decide in
accordance with their previously articulated views of policies. The fairminded observer knows this, appreciates that there is no question of personal
interest, and does not apprehend bias where there is simply a predisposition to
decide one way rather than the other in accordance with previous policies. But
where the question is whether the decision-maker has closed his mind and
slipped from predisposition to predetermination it seems unnecessarily
complication to involve the fair-minded lay observer.”

[181] In the leading case on predetermination, CREEDNZ Inc v Governor-General,
the Court of Appeal considered a challenge to the validity of an Order in Council bypassing all statutory planning procedures under the National Development Act 1979
and fast tracking the approval process for the construction of an aluminium smelter at
Aramoana Spit.55 It was apparent some members of the Government favoured this
approach, but as Cooke J stated:56
50
51

52
53
54

55
56

Franklin v Minister of Town and Country Planning [1948] AC 87 (HL) at 103.
Friends of the Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661
(HC) at [102].
Mr Long expressly accepted that Save CP does not allege bias on the part of the AELB.
Philip Joseph, above n 45, at [25.5.5].
HWR Wade and CF Forsyth Administrative Law (11th ed, Oxford University Press, Oxford, 2014)
at 394.
CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).
At 179.

 “None of this means, however, that the Government was irretrievably
committed to advising the necessary Order in Council. What can properly be
inferred is that when the question arose in April 1981 the Government was
already clearly in favour of the company’s project and highly likely to decide
in favour of an Order in Council.
But it is fallacious to regard that as a disqualification. The references in the
amended statement of claim to a real possibility of suspicion of
predetermination or bias are beside the point in relation to a decision of this
nature at this governmental project. Projects of this kind for which the
National Development Act is intended, whether Government works or private
works, are likely to be many months in evolution. They must attract
considerable public interest. It would be naïve to suppose that Parliament can
have meant Ministers to refrain from forming and expressing, even strongly,
views on the desirability of such projects until the stage of advising on an
Order in Council.
In relation to decisions under s 3(3) I think that no test of impartiality or
apparent absence of predetermination has to be satisfied. Any other approach
would make the legislation practically unworkable. The only relevant
question can be whether at the time of advising the making of the Order in
Council the Ministers genuinely addressed themselves to the statutory criteria
and were of the opinion that the criteria were satisfied.”

[182] Richardson J meanwhile found:57
“It is not expected that Ministers will approach their consideration … with
perfect detachment. Before the decision can be set aside on the grounds of
disqualifying bias it must be established on the balance of probabilities that in
fact the minds of those concerned were not open to persuasion and so, if they
did address themselves to the particular criteria under the section, they simply
went through the motions.”

[183] Finally, McMullin J found it would be “unreal to expect those concerned to
maintain a lofty detachment from the matter”.58
[184] There are two further comments on the legal principles which guide the
analysis I shall shortly commence. First, as Tipping J made clear in Travis Holdings
when he qualified his comments by saying “in the particular statutory and factual
setting with which this case is concerned”,59 while the overall question is the same,
whether or not predetermination is established on the facts must be decided by
reference to the particular legislative and factual setting. A similar proposition is
evident in Cooke J’s findings in CREEDNZ, cited above.

57
58
59

At 194.
At 214.
Travis Holdings Ltd v Christchurch City Council, above n 46, at 47.

 [185] Secondly, the Court can only properly rely on and examine evidence capable
of objective assessment in analysing whether predetermination has been established.60
Analysis
[186] Save CP’s claim is that predetermination coloured the AELB’s processes and
decisions both prior to February 2014 and subsequently at every relevant stage.
However, because the Council’s position is that the AELB made a legitimate primary
decision in April 2015, it is more appropriate to address Save CP’s claims by reference
to the following three temporal stages:
(a)

Was there predetermination before February 2014 (when the AELB
directed preparation of the Eng/Burt report)?

(b)

Was there predetermination at any time between February 2014 and
April 2015? And

(c)

Was the AELB entitled to make the decision in principle by 22 April
2015?

[187] I shall deal with each of these in turn.
(a)

Was there predetermination before February 2014?

[188] A review of the documentary evidence set out in some detail above easily leads
me to conclude that Save CP has failed to prove on the balance of probabilities there
was predetermination prior to February 2014. My reasons follow.
[189] The AELB was not informed until 1 May 2013 that from 1 July 2013
Chamberlain Park would be managed by the Council. There is no recorded discussion
of Chamberlain Park until the workshop on 4 December 2013.
[190] In Save CP’s favour, during 2013 the AELB did ask Council policy officers to
consider what other uses the park might be put to. There is also Jasmax’s Concept

60

Whakatane District Council v Bay of Plenty Regional Council, above n 48, at [117].

 Design Report of October 2013 and the O’Connor Sinclair report of 28 February 2014.
Mr Long observes that no explanation has been given for the existence of the Jasmax
report and that the O’Connor Sinclair report states its purpose is to provide guidance
to the Council and the AELB “on the best recreational use of the land associated with
Chamberlain Park”. He also points out that O’Connor Sinclair appear to have had
access to the draft AELB Plan when preparing their report.
[191] That combination of evidence represents the highest point tending to support a
finding of predetermination. But on any analysis this evidence, whether taken alone
or in combination, falls well short of such a conclusion. There can be nothing
objectionable in an elected local board being aware of the competing demands and
needs of its constituents. Plainly there was a paucity of open space and it was
incumbent on the AELB to explore the opportunity of developing a large piece of land
with an existing use. At their highest, the steps taken by the AELB prior to February
2014 could only be described as preliminary, exploratory and investigatory. There is
nothing in the evidence to support the claim that by this stage the AELB had closed its
mind to the option of retaining Chamberlain Park in its current state.
[192] It is against that background that the uncontradicted evidence of Dr Haynes
may be considered. Dr Haynes recalls that in the latter part of 2013, from the time of
the local body elections until the end of the year, Board business was taken up with
establishing the new local board rather than making decisions of any sort. He points
out that not only was the AELB aware of the duty to consult, but that consultation was
the primary means by which the Board could reach a decision which best served the
communities it represented.61 I therefore accept Dr Haynes’ explanation that the
inquiry was not because the AELB had made up its mind, “but in order to have as full
as possible [an] understanding of options for open space in Albert-Eden”.
[193] Neither do I consider the AELB’s decision-making may be impugned because
it did not undertake a specific investigation into Chamberlain Park’s utilisation as a
golf course.

Mr Long is wrong when he submits there was no evidence of

Chamberlain Park’s utilisation and that it was “ignored completely”. Shortly before
61

This claim is also corroborated by the subsequent steps the AELB took, namely multiple phases
of consultation.

 these events, O’Connor Sinclair had completed two reports for New Zealand Golf on
the challenges and opportunities facing managers of golf facilities in Auckland and
New Zealand. At least on an Auckland-wide level, the Council and the AELB
particularly were aware of the problems facing golf; low utilisation and an oversupply
of relatively homogenous golf courses and facilities which did not necessarily service
the changes Auckland is expected to encounter over the coming decades.
[194] Ironically, the survey’s findings in relation to Chamberlain Park suffered
because it did not respond. As a consequence data had to be drawn from other sources.
Problematically, this data seems not to have taken into account non-member usage
which, at a public course such as Chamberlain Park, necessarily represents a
significant component of its utilisation.
[195] But absent unreasonableness, it is beyond the scope of this Court’s function in
a judicial review to question whether the AELB might have had an enhanced or more
comprehensive body of information before it. The AELB’s failure to seek out further
evidence about Chamberlain Park’s utilisation is relevant only to the extent it reveals
predetermination. Mr Long submits that such an inference may properly be drawn
from the failure to seek further information despite flaws in the data. I disagree.
[196] First, the AELB continued to reference “underutilisation” at Chamberlain Park
throughout the consultation and decision-making process. While the data it relied on
may not have been complete, it nevertheless undermines the inference that Mr Long
seeks to draw. Instead, it indicates the reason the AELB did not call for further analysis
of Chamberlain Park’s actual utilisation was because it considered it was already
seized of sufficient information rather than because it predetermined change was
necessary.
[197] Secondly, in circumstances where the AELB had expert consultancy reports
available to it which surveyed the utilisation of golf courses around Auckland and New
Zealand, including Chamberlain Park, the fact it did not seek out further evidence is
an insufficient foundation for a finding of unreasonableness. While in some respects
the data may have been misleading, reliance on it does not meet the high threshold the
law requires before a finding of unreasonableness may be made.

 [198] Thirdly, there were other, more general, observations in the O’Connor Sinclair
reports which would have properly influenced the AELB.
[199] And finally, the actual utilisation of Chamberlain Park was merely one factor
which needed to be weighed by the AELB. Amongst other things, it was properly
influenced by the contents of the Longdill & Associates report which identified a
shortfall of sports fields in Albert-Eden.
(b)

Events between February 2014 and April 2015

[200] These have been discussed in detail already. For the purposes of the present
discussion a summary of the relevant events follows:
(a)

At the workshop on 19 February 2014 Ms Rimmer was directed to
prepare an assessment of the current provision of sports fields in the
Board’s area and to review golf provision at Chamberlain Park. This
was the first analysis of the use of Chamberlain Park.

(b)

When the Eng/Burt report was presented to the AELB the authors made
a case for change which recognised the need to accommodate the
growing and diversifying community and improving the use of existing
open space such as Chamberlain Park. A more detailed cost benefit
analysis was required and an acknowledgement was made that this
proposal did not represent a developed plan.

(c)

Between July and October 2014 there was an extensive period of
consultation which included pamphlet distribution and a community
meeting on 16 July 2014. Submissions were received including from
the Chamberlain Park golf club criticising the O’Connor Sinclair
reports. The Council acknowledged the review of Chamberlain Park
was much debated, supporting the investigation of possible alternative
uses. The report of 17 September 2014 acknowledged the theme arising
from the consultation process that the AELB should investigate
possible uses for the Chamberlain Park golf course, including a status
quo option. On 15 October 2014 the AELB resolved to review the use

 of Chamberlain Park with the aim of maximising its recreational use in
its Local Board Plan.
(d)

This led to a second stage of consultation in late 2014 and early 2015
involving an online survey, workshops with particular interest groups
(including golf users) and an open day at Chamberlain Park. The online
survey, which did not initially include an 18-hole option, was amended
after Mr Quince complained.

(e)

1,365 submissions were received. The results were analysed. The
interest of golfing groups in retaining an 18-hole course was noted.
This led to the preparation of scenarios for selection in the Master Plan
Options Report, to be considered on 22 April 2015.

[201] As Ms Anderson accepts, this catalogue reveals that there was a clear
preference, on the part of at least some members of the AELB, to change the use of
Chamberlain Park. The AELB was well aware of a shortfall of open space in its area
and the opportunity for redevelopment of Chamberlain Park. This is apparent from
the quite prescriptive instructions given to Ms Eng and Ms Burt. The two periods of
consultation, before and after the finalisation of the Local Board Plan, and the content
of the Plan, reinforce this conclusion. The AELB was minded to change the existing
use of Chamberlain Park to accommodate other pressing future needs of its
community.
[202] But such an approach does not conflict with the legal test for predetermination,
which requires a closed mind on the part of the decision-maker, or unwillingness to
genuinely consider changing its mind. It is apparent the AELB had a strong, but
legitimate and rational, predisposition for change.

This falls well short of the

requirement in law that it closed its mind or was unwilling to be convinced.
[203] As Ms Anderson points out, this is a very different situation to that in Lower
Hutt City Council v Bank where the decision-maker was found to have unlawfully
predetermined an issue when it entered into an agreement with a company under which

 it undertook all steps necessary to stop a street.62 The Court of Appeal found that the
Council, in entering into the contract, had put itself in a position where it could not
fairly discharge the duty placed on it by the governing statute.63
[204] Friends of Turitea Reserve Society Inc v Palmerston North City Council
provides a helpful contrast. There the Council entered into an agreement to receive
payments from Mighty River Power to establish wind turbines on reserve land.
Baragwanath J, in rejecting the allegation of predetermination, found that unlike Bank,
the Council did not abdicate its function by committing itself to ensure the change of
status of the reserve land took place, because the agreement included a clause that its
statutory functions were not fettered by the agreement, and that there would be no
liability for delay or prevention of the wind farm by such an exercise. 64 So long as the
Council’s mind was not closed to argument, its decision would not be invalidated.65
[205] Both these decisions are instructive. They reveal that decision-makers are
entitled to take significant steps in anticipation of a particular action or decision.
Nothing less than a closed mind will meet the predetermination threshold.
[206] I am satisfied a conclusion of predetermination is not available on the evidence
before me. It was inevitable the Eng/Burt report would focus on alternative uses given
the AELB’s desire to explore its options and its sense that it had a reasonable
understanding of Chamberlain Park’s existing use, as I have discussed above.
[207] As regards the general review undertaken by the AELB as part of its Local
Board Plan consultation process, it is plain, as Ms Anderson submits, that the Board
had in mind an evaluation of the current use of Chamberlain Park as well as alternative
future uses. Survey questions asked about golf, and the AELB’s engagement with
stakeholders included representatives of the golfing community. I agree with Mr Long
that the initial failure to include an 18-hole option on the online survey is capable of
inferring strong preference for change, but the AELB’s subsequent inclusion of that
option online and at the open day demonstrates it had not closed its mind to the
62
63
64
65

Lower Hutt City Council v Bank [1974] 1 NZLR 545 (CA).
At 550.
Friends of Turitea Reserve Society Inc v Palmerston North City Council, above n 51, at [104].
At [108]-[109].

 possibility of maintaining the status quo.

There were also catch all questions.

Generally, I agree with Ms Anderson that this approach was consistent with the
statutory function of the AELB which is to enable democratic decision-making on
behalf of the communities within its area and generally meet the current and future
needs of communities.66
[208] The various reports presented to the AELB by Council officers revealed the
competing views as to how Chamberlain Park should be used, including those
supporting the maintenance of the status quo. However, I do not consider that the
support for maintaining the status quo was so overwhelming that an inference of
predetermination should be drawn from the decision to press on with a review. On the
evidence before me, while there was significant opposition to change, it is equally
apparent that various other change options appealed to significant elements of the
community.
[209] This was not a case of token consultation involving a pretence on the part of
AELB when it was in fact deaf to the views of its public. Rather the Board was
presented with a complex body of public opinion. In that context, the decision to
review the use of Chamberlain Park in the Local Board Plan, and the features of the
subsequent review process undertaken, are not compelling evidence the AELB closed
its mind. Instead they convey the AELB’s natural and legitimate predisposition for
change informed by public feedback.
[210] Relatedly, limited weight may be placed on the subjective perceptions of
others, including Mr Quince, that their feedback was not taken into account. Just as
Mr Long exhorted me to rely on the objective record as the best source of evidence of
predetermination, similarly the personal views of those closely connected to these
events must be treated with caution. Mr Quince’s connections with Chamberlain Park
go back to the mid-1970s. He is now a committee member of the men’s golf club
having held the offices of secretary and more latterly treasurer.

It is perfectly

understandable he holds strong views about the retention of Chamberlain Park in its
present configuration. That he has invested his time and energy in supporting these

66

Local Government (Auckland Council) Act 2009, s 10 and Local Government Act 2002, s 10.

 proceedings is to be admired. But as with the evidence of Council staff and AELB
members, only limited weight may be given to subjective views absent corroboration
by the documentary record.
[211] The final, but important, reason which operates against a finding of
predetermination is that the AELB was involved in a multi-layered decision-making
process which it discharged effectively by consulting at each stage of the process. The
comments of the Court of Appeal in Bank are apposite:67
“It is obvious that before a council reaches the stage of deciding to put in
motion [a course of action], much investigation will have been undertaken and
many decisions made.”

[212] I am satisfied that this is what took place here. Notably, throughout each of
the various stages, there was substantial consultation. Before resolving to review the
use of Chamberlain Park with the aim of maximising its recreational use, the AELB
consulted and received feedback. Following the adoption of the Local Board Plan, it
consulted widely on the review. It is evident from the documentary record that through
these stages feedback was then analysed and reported on the AELB did not close its
mind to the possibility of retaining the status quo.
[213] At first blush it may seem that when the AELB advanced the four scenarios for
consultation at its workshop in March 2015, it had unlawfully predetermined that the
status quo would not be considered. An examination of what in fact occurred at the
22 April 2015 meeting, when the AELB approved in principle the redesign of
Chamberlain Park, displaces such a conclusion. At that meeting two members of the
AELB proposed an amendment to include the status quo as an option in the Master
Plan. Mr Long characterises this as the two members, having previously made their
minds up, re-opening them in an attempt to “fix the situation”. In my view that is a
courageous submission. A much more plausible inference to be drawn from these
events is that the AELB had not unlawfully predetermined the issue given two
members were of the view that the status quo should be included in the Master Plan.
Moreover, the decision in principle only passed by a four to three majority, with one
member abstaining. Consistent with the democratic processes of the AELB, there

67

Lower Hutt City Council v Bank, above n 62, at 549.

 remained a healthy disagreement within the decision-making body. That is an artefact
of a healthy democratic process. That the vote was not unanimous points firmly
against predetermination.
[214] As Baragwanath J observed in a similar context in Friends of Turitea Reserve
Society Inc:68
“It is notable that one councillor who had earlier been supportive of the
venture was one of the three who in the end voted against it.”

[215] It follows I am not satisfied that the AELB exhibited predetermination before
22 April 2015.
(c)

The in principle decision of 22 April 2015

[216] The significance of the decision of 22 April 2015 is that this was when the
AELB approved in principle the redesign of Chamberlain Park. The preparation of a
Master Plan containing four options was approved, and a proposed amendment to
include the status quo as one of the options rejected. In other words, the AELB had,
by this point, decided the retention of the status quo was not an option. The decision
had been made.
[217] Thus it is not necessary to assess whether there was predetermination after this
time. Rather, the inquiry is whether the decision was lawful; that is whether this was
an appropriate point for the AELB to make a decision or whether it constituted
illegitimate predetermination.
[218] Ms Anderson submits the events of April 2015 were some 14 months after
Save CP alleges the AELB had predetermined the issue. And yet, over this period, the
AELB consulted on and heard submissions in relation to the current and potential uses
of Chamberlain Park: by consulting on the draft Local Board Plan between 7 July 2014
and 6 August 2014, and by consulting on the review of Chamberlain Park following
approval of the AELB Plan. That second consultation which involved hosting open
days, workshops and conducting online surveys.

68

Friends of Turitea Reserve Society Inc v Palmerston North City Council, above n 51, at [109].

 [219] After these two periods of consultation and the evaluation of feedback, the
AELB made its decision in principle to redesign Chamberlain Park. Ms Anderson
submits that if this Court determines the AELB’s decision in principle was an
impermissible predetermination it will impose on all local boards an arduous implied
duty to consider the status quo in respect of all non-regulatory decision-making at
every stage of the decision-making process. This, she says, would give preservation
of the status quo a “pseudo-statutory protection”, akin to that actually present in the
Reserves Act 1977, which Baragwanath J considered in Friends of Turitea Reserve
Society Inc.69
[220] I agree with Ms Anderson. It was permissible for the Council to determine that
it would make changes after carrying out two discrete phases of consultation on
possible changes, including the option of maintaining the status quo. In fact, Mr Long
did not seriously challenge this view. Rather, his submission was that this course
would have been appropriate had the earlier stages of consultation been carried out
with an open mind.
[221] Having found the AELB did not predetermine the issue throughout the earlier
periods of consultation, I am satisfied that by 22 April 2015 it was appropriate for the
AELB to make a decision in principle that changes to Chamberlain Park would be
made, and then resolve to consult on the nature of those changes. This reflects the
reality that local bodies are elected to make decisions on behalf of their constituents.
And provided that in the course of their decision-making they comply with their
statutory duties, consider all relevant matters and consider no irrelevant matters,
maintain an open mind and arrive at a decision which is neither irrational nor
unreasonable, such decisions are lawful.
[222] Here there was no special statutory requirement to consider the status quo.70 I
have also found the AELB approached its decision-making with an open mind. Failure
to consider all relevant matters or consider irrelevant matters has not been pleaded.
And there is nothing irrational or unreasonable about resolving to make changes to the

69
70

See also Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 (CA).
Some of the duties of in the Local Government Act 2002 are the subject of the fourth cause of
action, which I address next.

 use of a park after two rounds of consultation and the analysis of the feedback,
particularly where, as Ms Anderson emphasises, comprehensive feedback
demonstrated a sizeable portion of the community was attracted to various of the
proposed changes.
[223] Mr Long also submits the AELB’s decision after 22 April 2015 to amend one
of the Master Plan scenarios to include only one 9-hole option is evidence of
predetermination. He also refers to the process by which the AELB dismissed the
three 18-hole options following consultation after finding, for various reasons, they
did not satisfy its criteria. I have already accepted Mr Long’s submission that “status
quo” refers to leaving the golf course as it is, or at least not changing its configuration
in a material way. Mr Long’s submissions on this point appear to depart from that
definition, suggesting it would have been permissible for any 18-hole option to have
been retained. Given my earlier comments I have not placed weight on this aspect of
the submissions because it is apparent that Save CP’s case is founded on the retention
of the golf course in its current state rather than the adoption of one of the three 18hole scenarios.
Conclusion on predetermination
[224] From the evidence I am satisfied the AELB did not close its mind to the
possibility of retaining Chamberlain Park in its current form until the decision in
principle on 22 April 2015. Undoubtedly the AELB was firmly disposed to change.
But throughout, any predisposition was legitimate and the Board, at all material times,
was genuinely open to changing its mind. A finding of predetermination is not
available on the evidence.
Fourth cause of action: Was there a failure to consult on the case for change?
Introduction
[225] The fourth and final cause of action has two aspects to it. To some extent both
overlap with the previous cause of action. Save CP claims there was a “fundamental
failure” in the decision not to consult on the status quo at the outset and that there was

 a failure to carry out the consultation with an open mind and with a genuine
consideration of the responses received.
[226] The Council’s position is that the AELB undertook extensive consultation in
relation to Chamberlain Park which complied with its decision-making obligations
under the LGA and any extant common law obligations. It argues that although there
is no duty to consult at the stage when options are identified, the AELB did consult
through the initial stages and in relation to the development of reasonably practicable
options. It also says its consultations on the status quo were conducted with an open
mind.
Consultation obligations: legal principles
[227] I begin by setting out the legal principles governing a local authority’s
consultation obligations. This was the subject of considerable focus in counsel’s
submissions. Ms Anderson submits no common law duties of consultation have
survived the Court of Appeal’s decision in Wellington City Council v Minotaur
Custodians Ltd.71 Mr Long submits to the contrary.
[228] For that reason it is necessary to review both the statutory principles as well as
the common law before embarking on an assessment of the evidence.
(a)

LGA principles

[229] The leading decision concerning the obligation on local authorities to consult
is Minotaur. There the Court of Appeal comprehensively analysed the provisions of
pt 6 of the LGA relating to decision-making.
[230] It is beyond serious doubt that although Minotaur related to decision-making
by a local council, it has equal force in the context of local boards. In carrying out
decision-making in respect of non-regulatory activities of Council, local boards are
required to comply with the requirements of ss 76 to 82 of the LGA, the same
provisions which were considered in Minotaur.72 In fact, s 16(2) of the LGAC

71
72

Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.
Local Government (Auckland Council) Act 2009, s 16(2).

 expressly states that ss 76-82 of the LGA should be read “as if every reference in those
sections to a local authority were a reference to a local board”.
[231] Part 6 of the LGA sets out “planning, decision-making and accountability”
obligations of local authorities. For present purposes, this includes obligations in
relation to all decision-making processes, including consultation with interested and
affected persons. Section 76 sets out the basic framework for decision-making:
“76

Decision-making

(1)

Every decision made by a local authority must be made in accordance
with such of the provisions of sections 77, 78, 80, 81, and 82 as are
applicable.

(2)

Subsection (1) is subject, in relation to compliance with sections 77
and 78, to the judgments made by the local authority under section 79.

(3)

A local authority—
(a)

must ensure that, subject to subsection (2), its decisionmaking processes promote compliance with subsection (1);
and

(b)

in the case of a significant decision, must ensure, before the
decision is made, that subsection (1) has been appropriately
observed.

(4)

For the avoidance of doubt, it is declared that, subject to subsection
(2), subsection (1) applies to every decision made by or on behalf of
a local authority, including a decision not to take any action.

(5)

Where a local authority is authorised or required to make a decision
in the exercise of any power, authority, or jurisdiction given to it by
this Act or any other enactment or by any bylaws, the provisions of
subsections (1) to (4) and the provisions applied by those subsections,
unless inconsistent with specific requirements of the Act, enactment,
or bylaws under which the decision is to be made, apply in relation to
the making of the decision.

(6)

This section and the sections applied by this section do not limit any
duty or obligation imposed on a local authority by any other
enactment.”

[232] The Court in Minotaur summarised the provision in this way:73
“Relevantly for present purposes, subs (1) and (2) provide that consultation
decisions must be made in accordance with ss 78 and 82, subject, in the case
of compliance with s 78, to the ameliorating effect of s 79. Subsection (3) sets
73

Wellington City Council v Minotaur Custodians Ltd, above n 71, at [33].

 two standards of performance. In respect of “significant decisions”, the local
authority must ensure that the provisions contained in subs (1) have been
“appropriately observed”. This is the higher of the two standards. Where the
matter is not “significant”, the standard is more aspirational: decision-making
is only required to “promote compliance” with the provisions referred to in
subs (1). Even that lower standard is subject to s 79 as noted.”

[233] I pause at this point to observe that Save CP did not claim the decision not to
consult on the status quo from the outset was a “significant decision” within the
scheme of pt 6 of the LGA. I agree with Ms Anderson that in the absence of Save CP
advancing any reasons why the decision is “significant”, there are no considerations
before me which would justify elevating it to a “significant decision” status.74
Accordingly, except for the “ameliorating effect of s 79”, the “promote compliance”
standard should be applied to the decisions made by the AELB in question.
[234] As noted, by virtue of s 76(2), compliance with both ss 77 and 78 is subject to
s 79.75 Relevant for present purposes, s 77(1) states that a local authority must, in the
course of the decision-making process, seek to identify all reasonably practicable
options for the achievement of the objective of a decision.
[235] Section 78 then relates to community views. It relevantly provides:76
“78

Community views in relation to decisions

(1)

A local authority must, in the course of its decision-making process in
relation to a matter, give consideration to the views and preferences
of persons likely to be affected by, or to have an interest in, the matter.

…
(3)

A local authority is not required by this section alone to undertake any
consultation process or procedure.

…”

[236] The Court in Minotaur noted that while s 78(1) requires a local authority, in
the course of its decision-making, to give consideration to the views and preferences

74

75
76

Local Government Act 2002, s 5 defines “significant” as follows: “significant, in relation to any
issue, proposal, decision, or other matter, means that the issue, proposal, decision, or other matter
has a high degree of significance”. Significance is also defined in s 5.
This point is also emphasised by ss 77(2) and 78(4).
I return below to subs (2), which has been repealed and so has no bearing on this proceeding, but
which was discussed in a number of decisions referred to the parties in the course of argument.

 of those affected or with an interest, s 78(3) makes clear that s 78 does not, in itself,
create an obligation to consult or indeed adopt any particular consultation process.77
Rather, the Court stated “consultation is one of a number of options for obtaining
information about the views and preferences of those affected or with an interest”.78
[237] Where a local authority decides to consult, the principles of consultation in
s 82(1) are engaged:

77
78

“82

Principles of consultation

(1)

Consultation that a local authority undertakes in relation to any
decision or other matter must be undertaken, subject to subsections
(3) to (5), in accordance with the following principles:
(a)

that persons who will or may be affected by, or have an
interest in, the decision or matter should be provided by the
local authority with reasonable access to relevant information
in a manner and format that is appropriate to the preferences
and needs of those persons:

(b)

that persons who will or may be affected by, or have an
interest in, the decision or matter should be encouraged by the
local authority to present their views to the local authority:

(c)

that persons who are invited or encouraged to present their
views to the local authority should be given clear information
by the local authority concerning the purpose of the
consultation and the scope of the decisions to be taken
following the consideration of views presented:

(d)

that persons who wish to have their views on the decision or
matter considered by the local authority should be provided
by the local authority with a reasonable opportunity to present
those views to the local authority in a manner and format that
is appropriate to the preferences and needs of those persons:

(e)

that the views presented to the local authority should be
received by the local authority with an open mind and should
be given by the local authority, in making a decision, due
consideration:

(f)

that persons who present views to the local authority should
have access to a clear record or description of relevant
decisions made by the local authority and explanatory
material relating to the decisions, which may include, for
example, reports relating to the matter that were considered
before the decisions were made.”

Wellington City Council v Minotaur Custodians Ltd, above n 71, at [35]-[36].
At [36].

 [238] But the obligation to undertake consultation in accordance with these
principles is subject to s 82(3) to (5):
“(3)

The principles set out in subsection (1) are, subject to subsections (4)
and (5), to be observed by a local authority in such manner as the local
authority considers, in its discretion, to be appropriate in any
particular instance.

(4)

A local authority must, in exercising its discretion under subsection
(3), have regard to—

(5)

(a)

the requirements of section 78; and

(b)

the extent to which the current views and preferences of
persons who will or may be affected by, or have an interest in,
the decision or matter are known to the local authority; and

(c)

the nature and significance of the decision or matter, including
its likely impact from the perspective of the persons who will
or may be affected by, or have an interest in, the decision or
matter; and

(d)

the provisions of Part 1 of the Local Government Official
Information and Meetings Act 1987 (which Part, among other
things, sets out the circumstances in which there is good
reason for withholding local authority information); and

(e)

the costs and benefits of any consultation process or
procedure.

Where a local authority is authorised or required by this Act or any
other enactment to undertake consultation in relation to any decision
or matter and the procedure in respect of that consultation is
prescribed by this Act or any other enactment, such of the provisions
of the principles set out in subsection (1) as are inconsistent with
specific requirements of the procedure so prescribed are not to be
observed by the local authority in respect of that consultation.”

[239] The operation of s 82 was helpfully described in Minotaur:79
“The effect of this provision is that, when a council does choose to consult,
certain “principles” apply to the particular forms of consultation the council
adopts: most relevantly, those affected should have access to relevant
information in an appropriate format and be encouraged to present their views
having been given clear information as to both the purpose of the consultation
and the scope of any likely decision. Further, a council must ensure that
interested or affected parties have a reasonable opportunity to present their
views, and that those views are received by council with an open mind.
In substance, these principles are really basic performance standards.
Subsection (3) is the counterweight. This restates (now for the third time) that
79

At [38]-[39].

 the “how” of compliance with these guidelines is a matter for the local
authority. That proposition is subject to the … further considerations which
the local authority must (relevantly) bear in mind [contained at s 82(4)].”

[240] There is also s 82A, which imposes information requirements on local
authorities who decide to consult, but which was not the subject of argument.80
Relevantly, s 82A(1) provides:
“82A

Information requirements for consultation required under this
Act

(1)

This section applies if this Act requires a local authority to consult in
accordance with, or using a process or a manner that gives effect to,
the requirements of section 82.

(2)

The local authority must, for the purposes of section 82(1) (a) and (c),
make the following publicly available:
(a)

the proposal and the reasons for the proposal; and

(b)

an analysis of the reasonably practicable options, including
the proposal, identified under section 77(1); and

(c)

if a plan or policy or similar document is proposed to be
adopted, a draft of the proposed plan, policy, or other
document; and

(d)

if a plan or policy or similar document is proposed to be
amended, details of the proposed changes to the plan, policy,
or other document.”

[241] Completing the scheme is s 79, to which ss 77 and 78 are subject. It provides
that it is the responsibility of local authorities to decide in their discretion how ss 77
and 78 are to be complied with, though regard must be had to the matters in s 79(2):

80

79

Compliance with procedures in relation to decisions

(1)

It is the responsibility of a local authority to make, in its discretion,
judgments—
(a)

about how to achieve compliance with sections 77 and 78 that
is largely in proportion to the significance of the matters
affected by the decision as determined in accordance with the
policy under section 76AA; and

(b)

about, in particular,—

This section was inserted on 8 August 2014 by s 24 of the Local Government Amendment Act
2014. In terms of the present timeline, this was during the first period of consultation on the draft
AELB plan, after pamphlets had been distributed advising of the draft plan and calling for
submissions.

 (2)

(i)

the extent to which different options are to be
identified and assessed; and

(ii)

the degree to which benefits and costs are to be
quantified; and

(iii)

the extent and detail of the information to be
considered; and

(iv)

the extent and nature of any written record to be kept
of the manner in which it has complied with those
sections.

In making judgments under subsection (1), a local authority must have
regard to the significance of all relevant matters and, in addition, to—
(a)

the principles set out in section 14; and

(b)

the extent of the local authority’s resources; and

(c)

the extent to which the nature of a decision, or the
circumstances in which a decision is taken, allow the local
authority scope and opportunity to consider a range of options
or the views and preferences of other persons.

[242] Having set out this legal framework, the Court in Minotaur made the following
observation, of central relevance to this proceeding:81
“In summary, pt 6 of the LGA carefully and repeatedly rejects the idea that
there is to be found in its provisions any duty to consult with affected or
interested parties. Instead, local authorities are given a deliberately broad
discretion as to whether to consult, and, if so, how. That does not mean,
however, that there are no limits on a council's discretion. Like all statutory
decisions, consultation decisions must be rational and consistent with the
objects of the LGA and the particular controlling provisions.”

[243] It was of the view that:82
“Parliament’s clear and repeated preference for protecting the Council’s right
to decide how it wishes to consult must count for something. In this case, it
means that if an inference can be drawn that there was a rational basis for
different treatment between affected classes within the community, that
inference should be drawn.”

[244] In other words, while the ordinary controls of judicial review, such as illegality
(in terms of compliance with the objects and controlling provisions of the LGA),
irrationality and unreasonableness apply to consultation decisions of local authorities,

81
82

Wellington City Council v Minotaur Custodians Ltd, above n 71, at [42].
At [68].

 the LGA provides a wide berth for local authorities to decide when and how they
should consult. Similar comments were made by Baragwanath J for the Court of
Appeal in Whakatane District Council v Bay of Plenty Regional Council:83
“In terms of s 78(1) the decision-maker is the local authority and it is no
function of the courts to engage in intense scrutiny of its decision-making
processes. The s 78(1) requirement to “give consideration to the views and
preferences of persons likely to be affected by, or have some interest in, the
matter” is distinctly less than that of consultation under s 82 which s 78(3)
explicitly excludes. By s 79 it is for the local authority to make the
discretionary judgment about how to achieve compliance with ss 77-78. A
court will not interfere with a discretionary judgment unless it is irrational or
made on a wrong legal principle. If not, it is enough to validate such a
judgment that there is some evidentiary basis for it.”

[245] One further remark worthy of inclusion in this patchwork of judicial
commentary is Whata J’s in Bailey v Christchurch City Council:84
“The obligation to consider the views of affected persons is an aspect of local
government democracy. Section 79 confers on the Council a discretion as to
how it considers those views, not whether they should be considered. The
method must be largely proportionate to the significance of the matters
affected by the decision. Whether therefore the Council was “obliged” in the
circumstances to “consult” depended on the proportionality assessment …
While it is the task of the Council to make the proportionality assessment,
given the importance attached by the Act to consideration of the views of
affected persons, a proportionate method is a legal condition prerequisite to a
valid s 79 decision.”

[246] That observation contextualises the analysis in Minotaur. It would be incorrect
to read the Court of Appeal’s decision as removing all fetters from local authorities’
decision-making powers at ss 76 to 82. The matters in ss 77 and 78 must be considered
by local authorities in the course of their decision-making process, or at least local
authorities must ensure their decision-making processes promote compliance with
those sections.85 There is also a requirement that the methods adopted are largely in
proportion to the significance of the issue.86 Those are illegality controls. What the
Court of Appeal in Minotaur emphasises, in different language to Whata J in Bailey
but in the same vein, is that whether to consult, and how, is a matter for the local
authority’s discretion, subject to ordinary judicial controls on the exercise of
83

84
85
86

Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR
826 at [76].
Bailey v Christchurch City Council [2013] NZHC 1933, [2013] 3 NZLR 679 at [56].
Local Government Act 2002, s 76(3)(a).
Section 79(1)(a).

 administrative powers. In short, as s 79 makes plain, consultation is not the only
mechanism by which ss 77 and 78 may be satisfied.
[247] I am guided in my application of ss 76 to 82 of the LGA by these judicial
statements.
(b)

A common law duty of consultation?

[248] At common law there exists a duty of consultation which broadly involves the
affected party knowing what is proposed, being given a reasonably ample and
sufficient opportunity to express their views, and freedom to express what they think.87
This may also involve the need to equip the parties with relevant information. As with
the duty generally, what equates to adequate information is a fact-intensive enquiry.88
But while, as Taylor writes, the statutory and factual circumstances are vital, “certain
generalities are possible and helpful”.89
[249] More recently, the United Kingdom Supreme Court has characterised it as a
“duty cast by the common law upon a public authority to act fairly”, a duty it described
as “often illuminated by the doctrine of legitimate expectation”.90
[250] The other legal question addressed by the Court in Minotaur, although in
obiter, is the question of whether common law duties of consultation owed by local
authorities have survived the enactment of the LGA. While it considered common law
duties of consultation could arise on the particular facts, its general position was:91
“Because the clear intention of pt 6 is to give councils a wide discretion in this
field, it will always be difficult to establish a concurrent common law duty to
consult except in truly exceptional cases such as Pascoe.”

[251] The Court also questioned whether the “fairness-based obligation to consult”
identified in R (Stirling) v Haringey London Borough Council was applicable, as
87

88

89
90
91

Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 674, citing
Port Louis Corp v Attorney-General of Mauritius [1965] AC 1111 (PC) at 1124.
GDS Taylor Judicial Review: A New Zealand Perspective (3rd ed, LexisNexis, Wellington, 2014)
at [13.80].
At [13.78].
R (Stirling) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947 at [23].
Wellington City Council v Minotaur Custodians Ltd, above n 71, at [48], citing Pascoe Properties
Ltd v Nelson City Council [2012] NZRMA 232 (HC), in which MacKenzie J found the Council

 similar facts in New Zealand would have breached s 82(1)(c) of the LGA, and
therefore possibly the performance obligation at s 76(3).92
[252] The Minotaur decision does not stand for the proposition that any common law
duty of local authorities to consult has been extinguished by the LGA. But it does put
it beyond doubt that the starting point when assessing whether a local body has
complied with its consultation obligations is the LGA, and the broad, discretionary
approach it takes to compliance with consultation requirements under ss 77, 78, 79
and 82. It is only where, on the particular facts of the case, which in the Court of
Appeal’s words will be “truly exceptional”, a concurrent duty at common law may be
made out.
Consultation: assessment
[253] Mr Long submits that as a matter of law, the AELB was required to:
(a)

under s 77, “seek to identify all reasonably practical options” (which he
submits must include the status quo option) for the achievement of the
objective of a decision;

(b)

under s 78, “give consideration to the views and preferences of
interested persons”;

(c)

under s 79(1)(b)(i), actually consider what all reasonable options for
Chamberlain Park were; and

(d)

under s 79(2)(c), have regard to the significance of all relevant matters
and the extent to which the nature of its decision allows it scope and
opportunity to consider a range of options and the views and
preferences of other people.

92

was obliged to consult with adjoining businesses on a decision to change the use of council-owned
land from customer car park to an ordinary park. The Court of Appeal in Minotaur, at [46],
characterised this as a case of legitimate expectation arising on unique facts, being that the Council
had previously struck a special rate levied on the adjoining businesses to fund its purchase of the
land for customer parking.
At [47].

 [254] He submits the AELB erred by failing, in the first place, to properly identify
reasonably practicable options for consultation, as the decision-maker in Whakatane
District Council did.
[255] By failing to identify the status quo as a reasonably practicable option, he
submits the AELB’s consultation process was fundamentally flawed. It did not put
itself in a position to be able to consult on a reasonably practicable option. In this
submission he draws an analogy with R (Stirling). There, where a council tax
deduction scheme was proposed, the consultation material distributed by the local
authority did not provide alternatives to the proposal.

Lord Reed found the

consultation document “misleadingly implied that there were no possible alternatives
to that choice”, and that as a result “there was no consultation on the fundamental basis
of the scheme”.93
[256] I have carefully read both decisions cited by Mr Long and I am not convinced
either assists Save CP’s case.
[257] In two important respects, the decision-making procedures governing the Bay
of Plenty Regional Council’s decision to move its office from Whakatane to Tauranga
in Whakatane District Council were more prescribed than in the present case. First,
the decision was a significant one, meaning compliance with ss 76(1) had to be
“appropriately observed”.94 In contrast, the AELB’s decision regarding Chamberlain
Park was not significant in terms of the LGA and so the less stringent requirement that
compliance with s 76(1) is promoted applies. A more rigorous legal test guided the
Court of Appeal’s analysis.
[258] Secondly, and importantly, when the Whakatane District Council case was
decided s 78(2) had not yet been repealed. That provision prescribed the stages at
which a local body had to give consideration to the views and preferences of persons
likely to be affected by or to have an interest in its decision-making:
“(2)

93
94

That consideration must be given at—

R (Stirling) v Haringey London Borough Council, above n 90, at [42].
Local Government Act 2002, s 76(3)(b).

 (a)

the stage at which the problems and objectives related to the
matter are defined:

(b)

the stage at which the options that may be reasonably
practicable options of achieving an objective are identified:

(c)

the stage at which reasonably practicable options are assessed
and proposals developed:

(d)

the stage at which proposals of the kind described in
paragraph (c) are adopted.

[259] Section 78(2) was integral to the Court of Appeal’s decision. The essential
failing identified by the Court was that the decision-maker had not given consideration
to community views and preferences at either the first or second stage of s 78(2).95
The Court stated:96
“It is not logically impossible that EBOP could have “accidentally” done
enough in its engagement with those likely to be affected to comply with s
78(2). But the prescriptive nature of s 78(2), particularly when read with s 77,
makes it inherently unlikely that there would be “accidental” compliance.
There is simply no factual basis for the submission that that occurred.”

[260] Indeed, no evidence was adduced to show it had, in the course of its decisionmaking process, given consideration to the views and preferences of persons likely to
be affected by or have an interest in the matter at either the first or second stage of
s 78(2).97 The concluding comments show how central the requirements of s 78(2)
were to the Court’s decision:98
“… here Parliament stipulated with particularity for the four stage
consideration of community views and preferences. It is the task of the courts
to monitor whether that has been done. EBOP, which possessed the means of
putting the relevant information before the Court, has been unable to show
that it complied with its obligations at the first two stages.”

95
96
97
98

Whakatane District Council v Bay of Plenty Regional Council, above n 83, at [71].
At [73].
At [74].
At [77].

 [261] The Court of Appeal’s decision in Whakatane District Council cannot be
extracted from that context. When s 78(2) was being repealed, at the committee stage
of the second reading of the Local Government Act 2002 Amendment Bill the Minister
of Local Government said:99
“Part 1 repeals requirements for local authorities, firstly, to consider the views
of interested or affected persons at four specified stages in the decisionmaking process. … It will be up to the council to decide how many times it
will consult.”

[262] Mr Long points out that in its February 2014 report, O’Connor Sinclair stated
at the first phase of the Chamberlain Park project, it would:100
“… review a number of key documents (some to be identified by research) to
gain an overall understanding and appreciation for the activities and
characteristics of Chamberlain Park. This will include the following:
…
•

Documents on current use and participation at Chamberlain Park;

•

Reports prepared by Auckland Council on utilisation, maintenance
and financial reports for the golf course[.]”

[263] He submits the subsequent failure to adopt this recommendation and carry out
this sort of procedure at the preliminary stage of the AELB’s investigation was a
“fundamental error”.
[264] Were s 78(2) still in operation, that submission might have been more
successful. But it is plain that the repeal of that subsection was intended to provide
more flexibility to local authorities when discharging their s 78(1) obligations. In and
of itself, failure to undertake that process is not an error provided the approach taken
by the AELB generally satisfied s 78(1). I address that question below, but note at this
stage, as I have earlier observed, it is factually incorrect that the AELB had no
understanding of the current situation at Chamberlain Park.

99
100

(16 November 2010) 668 NZPD 15539.
Affidavit of Richard Quince, sworn 10 August 2017, at 163.

 [265] Likewise I do not consider R (Stirling) is apposite in that at no stage, until a
decision in principle to redesign Chamberlain Park was made on 22 April 2015, did
correspondence by the AELB misleadingly imply there were no possible alternatives.
The first round of consultation, on the draft AELB plan, stated the AELB wished to
“review the use of Chamberlain Park and consult with the community on options for
maximising its recreational use”. That language left all options available at that stage.
The AELB was merely seeking consultation on “options”, and undertaking a “review”
of the park’s use. Nothing in the language of the draft plan and the pamphlets
suggested there were no possible alternatives to change.

At most it indicated a

predisposition for change.
[266] Ultimately, I am satisfied that the approach followed by the AELB complied
with its obligations arising under the relevant provisions of the LGA, namely ss 77 to
79, which Mr Long focused on. There were two relevant consultation stages; one
before the adoption of the AELB Plan, which was on the draft plan and one following
its adoption during the review of Chamberlain Park.
[267] I have already discussed in detail the factual basis which supports this
conclusion, particularly in respect of the third cause of action; predetermination. Thus
what follows is simply an abbreviation of my earlier factual analysis.
[268] The first consultation phase involved the delivery of a summary of the draft
plan to every household and business in the local board area. The summary was also
found at public areas. It noted the AELB wished to review the use of Chamberlain
Park and consult with the community on options for maximising its recreational use,
and called for submissions. A large number of submissions were received. These were
compiled into a summary of submissions which identified key themes. Relevantly,
participants used this opportunity to promote the retention of the status quo; this led
the summary report to record that the review of Chamberlain Park was a “much
debated initiative”.

 [269] The second phase occurred after the Local Board Plan was adopted, and once
the review of Chamberlain Park had been confirmed. At numerous workshops,
meetings, an open day and via an online survey, interested and affected persons were
invited to comment on what activities they wanted to see at Chamberlain Park. This
included questions about the provision of golf. Again, interested parties took the
opportunity to express their desire for the retention of the status quo.
[270] This was not a case of the AELB adhering to a preferred option without
engaging the community in its decision-making process. Rather, by conducting the
two consultation phases discussed, I am satisfied the AELB complied with ss 77 to 79
by:
(a)

Seeking to identify all reasonably practicable options for the
achievement of the objective of its decision: This was easily discharged
by holding two rounds of consultation and meeting with interested
parties.

The status quo option was identified multiple occasions

through submissions made during consultation in response to questions
framed broadly enough to invite such submissions. It should also be
noted that the focus of s 77(1)(a) on reasonably practicable options is
qualified by the words which follow, “for the achievement of the
objective of a decision”. It was a matter for the AELB whether, having
sought to identify all options via consultation, maintaining the status
quo would achieve the objectives of its decision.
(b)

Assessing the options in terms of their advantages and disadvantages:
The feedback was the subject of summary reports and debate by the
members of the AELB. They were also used to influence the next stage
in the process (in the case of the first round informing what questions
were asked at the second round and, in the case of the second round,
informing what scenarios were put forward for Master Plan
consultation).

(c)

Giving consideration to the views and preferences of persons likely to
be affected by, or to have an interest in, the matter: The consideration

 given to the views and preferences expressed is plain in the way the
feedback from each round of consultation was noted and used to inform
the next round.
[271] Generally, it must be remembered that compliance with ss 77 and 78 is, by
virtue of s 79, a matter for local authorities in their discretion. They are to make
judgements about the extent to which different options are identified and assessed, the
degree to which benefits and costs are quantified, the extent of detail of information
to be considered, and the extent and nature of any written record kept on compliance
with these sections.101

These judgements must be largely in proportion to the

significance of the matters affected by the decision.102 But they are for them, absent
an identifiable error. For reasons already discussed I can identify no error in the way
the AELB exercised its discretion in complying with ss 77 and 78.
[272] For completeness, this is equally true in respect of the way local authorities
undertake consultation in accordance with the principles of consultation at s 82(1).
Mr Long has not suggested any way that the approach taken by the AELB in its
discretion to comply with those principles, failed to properly observe them, except in
relation to the second aspect of this fourth cause of action which I shall shortly
consider. Foreshadowing that analysis, I also do not consider there was any error in
the approach taken by the AELB in respect of these principles.
Having an open mind: legal principles
[273] The requirement to have an open mind, the focus of the second aspect of the
fourth cause of action, is contained in s 82(1)(e) of the LGA. Consultation that a local
authority undertakes in relation to any decision or other matter must be undertaken in
accordance with the principle that the views presented to the local authority should be
received by the local authority with an open mind and should be given due
consideration by the local authority when making a decision.

101
102

Local Government Act, s 79(1)(b).
Section 79(1)(a).

 [274] As with the other s 82(1) principles, observation of these rests with the
discretion of the local authority. It is what the local authority considers to be
appropriate in the particular instance. But in exercising its discretion, the local
authority must have regard to the matters in s 82(4), including: the requirements of
s 78; the extent to which the current views and preferences of persons who will or may
be affected by, or have an interest in, the decision are known to the local authority; and
the nature and significance of the decision, including its likely impact from the
perspective of the persons who will or may be affected by, or have an interest in, the
decision.
[275] As the Court of Appeal has observed, to have an open mind, the decision-maker
must be “ready to change [its mind] and even start afresh”.103
Having an open mind: assessment
[276] In my view there are two considerations, which to some extent counterbalance
each other, that in accordance with s 82(4) would have influenced the AELB’s exercise
of its discretion as to how it went about consultation. The first is the fact that it would
have had, even at the outset, a reasonable grasp of the views and preferences of the
golfing community to the prospect of changes to Chamberlain Park. However, it may
not have had a grasp of the diversity of persons who had an interest in Chamberlain
Park. The second consideration is that from the outset, it would have been clear that
from the perspective of these communities, the likely impact of any changes to
Chamberlain Park would be substantial.
[277] In order to consult in accordance with the principle in s 82(1)(e), the approach
taken by the AELB required these to be taken into account. Mr Long submits it did
not because, from the start, the AELB did not approach its discussions with an open
mind. He submits having an open mind is an ongoing and continuing obligation.
[278] I do not accept that submission on the facts. For the same reasons set out in
some detail in relation to the third cause of action, I do not consider that at any stage,

103

Wellington International Airport Ltd v Air New Zealand, above n 87, at 675.

 until its decision in principle on 22 April 2015, the AELB closed its mind to the
possibility of retaining the status quo.
[279] But more specifically, in relation to s 82(1)(e), I consider the consultation
processes adopted by the AELB accorded with the principle that it should have an
open mind and give those views presented to it due consideration. It also reflected the
two considerations noted earlier, with special focus given to the views of the golfing
community. The submission process pinpointed, if the AELB was not aware already,
the diversity of those persons committed to the retention of Chamberlain Park in its
present configuration. Mr Quince prepared a submission on behalf of Chamberlain
Park which emphasised this and pointed to the number of casual golfers who utilised
the park’s facilities. He also spoke at various AELB workshops. Moreover, once the
AELB Plan was adopted, the status quo was not off the table and, in fact, the
desirability of its retention was emphasised at various workshops, meetings and in
feedback. It was also noted by Council officers in their reports and, as already
discussed, motivated two members of the AELB to propose an amendment to include
the status quo as an option for consultation on the Master Plan.
[280] In the context of what was a lengthy, multi-layered decision-making process,
the AELB maintained an open mind until, in its discretion, it considered it was
appropriate to advance matters and shift focus to what the redesign of Chamberlain
Park should look like. That decision did not fall foul of s 82(1)(e).
[281] The AELB duly considered all relevant matters in arriving at that decision,
including the strong interests of certain communities. Inevitability a proportion of the
submitters were bitterly disappointed including those with a strong interest in
maintaining the status quo. But that is a not uncommon consequence of decisionmaking. The decision here was made by an elected body exercising its functions on
behalf of the wider community in a democratic fashion.
Conclusion
[282] I have determined that the AELB discharged its decision-making
responsibilities which arise under ss 76 to 82 of the LGA properly and in accordance
with law.

 [283] It is appropriate to conclude by reference to the paradigm common law
principles of consultation as set out in Wellington International Airport Ltd.
[284] The interest groups represented by Save CP were told of the proposed review
and were provided with multiple opportunities to express their views. This they did
both orally and in writing. The approach taken by the AELB was neither perfunctory
or a mere formality. It engaged in a robust process of consultation where multiple
interest groups participated in an open and at times hotly contested debate concerning
the best use of Chamberlain Park. Moreover, and crucially, consultation must not be
equated with negotiation.104 The process embarked on was not one which had as its
object arriving at a solution which represented some form of consensus. There was
no requirement for the AELB to accept the views and preferences or even reach a
compromise with those who sought the maintenance of the status quo.
[285] For these reasons this cause of action must also fail.
Result
[286] The application for judicial review is dismissed.
[287] The interim orders shall expire 20 working days after the date of this judgment.
Costs
[288] The parties did not address me on the question of costs. The Council, as the
successful party, is presumptively entitled to an award of costs. I invite the parties to
consult on the question of costs with a view to agreement.
[289] If the parties are unable to agree and if the Council seeks an award, I direct that
memoranda of costs not exceeding three pages (exclusive of appendices) are to be
filed:
(a)

by the Council within 20 working days of the date of this judgment;
and

104

At 676.

 (b)

by Save CP within 10 working days thereafter.

Moore J
Solicitors/Counsel:
Mr Long, Auckland
Ms Hollings, Auckland
Mr Cowan, Auckland
Ms Anderson, Auckland
Ms Quinlan, Auckland