Council's QE Strategic Asset Sales Process

In this post I question Auckland Council's compliance with the Local Government Act and with its own recently agreed policies for public engagement and significance. The example I will use is the proposed privatisation of Queen Elizabeth Square.

Introduction

Previous blog postings (here and here) and media articles have described Precinct Property proposals to redevelop its land interests in Downtown Auckland. Precinct Properties owns the two existing towers on the land (Zurich Tower and HSBC tower) and the old Downtown Westfield Shopping Centre. The land is part of Auckland's Downtown Precinct. It is a sub-precinct.

There has been discussion about the possibility of selling, or otherwise providing opportunity for developing, publicly owned land that is part of this sub-precinct - land known as Queen Elizabeth Square - land which is presently zoned "road". There's a few pictures of it here. This square was a Council creation back in the 1970's when the downtown area was developed with the HSBC Tower (then known as the Air NZ Building) and the Westfield Shopping Centre. The development replaced old Auckland buildings and a not-so-small street called Little Queen Street. The combined land area of the street that got developed over was about 2000 square metres. (There is a very useful and readable article about Auckland's Downtown development during that period in a recent issue of Architecture Now magazine.) The land area equivalent was retained in public ownership in the form of QE Square. This is one of the reasons why QE Square did not have a lot of love lavished on it when it was first built. It was essentially land left-over from private development. So it's not surprising that it has not been that successful. So far.

The Resource Management Act and Queen Elizabeth Square

The PAUP (Proposed Auckland Unitary Plan) currently has this provision:

That's a quote from the Proposed Unitary Plan that is being heard and discussed now by commissioners. It sets out requirements in the event QE Square is reconfigured in any way. Planners writing that provision clearly understood there was a possibility that the Downtown Precinct would be redeveloped in the future, and that it might be a good idea to reinstate the old street network or any one of many other possibilities.  But it would have to be within the precinct. The Unitary Plan cannot require or anable the Council, or any other body, to do something outside the site, because of something that happens within the site.

The Unitary Plan comes with various factsheets to explain terms, including this one which explains what a Framework Plan is: "a framework plan is a voluntary resource consent that enables land owners to demonstrate and achieve integrated development within brownfield or greenfield areas....framework plans can apply within precincts... they ensure place-based provisions apply to an area over and above zone provisions...an approved framework plan may contain locations of roads and open spaces within a precinct or sub-precinct..."

So. Reading these provisions you could be forgiven for coming to the conclusion that any change involving changes in the use or disposition of QE Square land must be within the subprecinct that is the subject of the framework plan relating to Precinct Properties development land interests - ie within the rectangular land area bounded by Custom Street, Lower Albert Street, Quay Street and Lower Queen Street. In this case it seems probable that there are two land-owners: the Council and Precinct Properties.

Precinct Properties must obey the law of the land, and comply with the Unitary Plan, and of course it must satisfy its shareholders. But what about Auckland Council? Who or what must it satisfy, if it wants to sell or change the use of Queen Elizabeth Square? Can it legitimately trade away QE Square for another piece of road or wharf space somewhere else?

(NB: Precinct Properties do not support the unitary framework plan provisions or the QE Square provision quoted above. A summary of Precinct Property submissions for change to the Unitary Plan is provided at the end of this posting.)

The Local Government Act and Queen Elizabeth Square

The purpose of Local Government Act is pretty clear:

3   Purpose

The purpose of this Act is to provide for democratic and effective local government that recognises the diversity of New Zealand communities; and, to that end, this Act— 

(a) states the purpose of local government; and 

(b) provides a framework and powers for local authorities to decide which activities they undertake and the manner in which they will undertake them; and 

(c) promotes the accountability of local authorities to their communities....

There is a lot of detail about how decisions should be taken, how meaningful consultation should be organised and other matters. The Act also talks about "significance" and "engagement".

76AA Significance and engagement policy

(1) Every local authority must adopt a policy setting out—

• (a) that local authority's general approach to determining the significance of proposals and decisions in relation to issues, assets, and other matters; and

• (b) any criteria or procedures that are to be used by the local authority in assessing the extent to which issues, proposals, assets, decisions, or activities are significant or may have significant consequences; and

• (c) how the local authority will respond to community preferences about engagement on decisions relating to specific issues, assets, or other matters, including the form of consultation that may be desirable; and

• (d) how the local authority will engage with communities on other matters.

(2) The purpose of the policy is—

• (a) to enable the local authority and its communities to identify the degree of significance attached to particular issues, proposals, assets, decisions, and activities; and

• (b) to provide clarity about how and when communities can expect to be engaged in decisions about different issues, assets, or other matters; and....

(3) The policy adopted under subsection (1) must list the assets considered by the local authority to be strategic assets.

At its Governing Body meeting on the 18th of November this year, Auckland Council formally adopted its own "engagement" policy. Several things strike me. First of all, the introduction to Auckland Council's engagement policy says this: 

"For Auckland Council, engagement is a genuine dialogue between decision-makers, communities and stakeholders for the purpose of making better decisions, policies or programmes of action..."

In compliance with s.76AA(3) above, the engagement policy does provide a list strategic assets. These include airport and port shares. They include the water and wastewater network. And they include parks and roads. But they carefully use the words: "road network" and "parks network", and define the word "network" to mean the whole network. Which is a cunning way of excluding from the strategic asset list anything that might be just a part of the network. Does this permit Auckland Council to privatise a piece of road or a piece of park without going through the accountability and democratic decision-making processes that are the purpose of the Local Government Act?

Council's "Programme of Action" for QE Square

Auckland Council's media release about its QE Square/Downtown engagement with Auckland communities, is entitled: "Aucklanders asked to help shape downtown public spaces". In this media release, Deputy Mayor, Penny Hulse says:

“Downtown Auckland will be transformed over the next decade, and that includes a really exciting opportunity for much more attractive, vibrant, useable public spaces. This will benefit all those who live, work and study in the city centre, as well as businesses, visitors and shoppers...."

The media release refers members of the public to an overview description on "how to have your say" which says this:

What do you want most from public spaces in downtown Auckland?

Auckland’s downtown will be transformed over the coming decade with better transport, more attractive streets and new buildings. The plans also include new and better public spaces. The sale of Queen Elizabeth Square will enable the creation of a new space on lower Queen Street, and will fund the development of two new waterfront spaces without drawing on ratepayer funding. Further potential spaces are being considered and your opinions will help that planning. We want to hear from you about what you would like most to be doing from Lower Queen Street through to the waterfront areas between Prince’s Wharf and Captain Cook’s Wharf...."

Remember we're talking here about "genuine dialogue".

In Auckland Council's significance and engagement policy we read:

"Before the council makes a significant decision, the council will consult the public, following the principles set out at section 82 of the LGA...". 

These include: "...listen to, and consider those views, with an open mind...".


.....with an open mind....

That would usually mean you hadn't already made up your mind.

It appears that none of the consultation relates to Council's underlying "programme of action" or to the fundamental decisions that are being considered. These fundamental decisions require answers or opinions to questions like these:

• From which funding source should Precinct Properties be compensated for the loss of basement car-parking in its proposed Downtown tower development that will be caused by the Britomart/CRL rail tunnel?
• What options exist and which is preferred for relocating QE Square space elsewhere within the Downtown subprecinct in accordance with Unitary Plan provisions?
• How will equivalent or better bus interchange services that replace those displaced from Lower Queen Street be provided without degrading existing pedestrian amenity?
• What minimal cost options exist for simply re-allocating existing waterfront public owned road or wharf space to public pedestrian uses - irrespective of proposed Downtown development? 
• Should QE Square land be sold at all, and what should that revenue be used for?
• What options exist for improving QE Square?

Council has got itself into a serious public policy corner.

Quite apart from severely challenging the purpose of the Local Government Act, manipulating its own Unitary Plan provisions, and acting in a self-interested manner (conflict of interest), it opens itself up to public criticism because what the people are being consulted about amounts to window dressing, re-arranging deckchairs, applying lipstick, whatever.

It is an insult to public intelligence.

This is not "genuine dialogue" at all.