The short version of what happened in the Auckland Architectural Association's legal challenge in the Environment Court of Auckland Council's decision to sell Auckland's Queen Elizabeth Square to Precinct Properties is simple: they won, we lost, and Auckland loses another piece of public land.
When I say "we" there were several incorporated societies and associations that stepped up here: Auckland Architectural Society, Urban Auckland Incorporated, Civic Trust Auckland, Walk Auckland and the Auckland CBD Residents Association.
You can read the Environment Court decision here. You will see that two separate but linked appeals were heard: the Road Stop appeal and the Plan Modification 79 appeal. The Environment Court ruled on the Road Stop appeal (the road stop proposal was upheld), and left the Plan Modification appeal for resolution by the parties by agreement.
It's not a particularly rewarding read because - inevitably - the decision cannot do justice to the sheer volume of work and scholarship - on all sides - that went into this. I estimate that Precinct + Council invested $2,000,000 in mounting and presenting their case to the Court. Some 40 briefs of evidence, substantial legal representation. They wanted to win this. There's a lot we can all learn from what happened. But that will take time. Just a few thoughts for now.
It was a David and Goliath battle, but unlike David, while we had a well-shaped stone, we didn't use it. (This is all with the benefit of hindsight.)
Mediation took place over two days prior to the hearing. At that mediation we learned that Precinct proposed widening the East West laneway to 6 metres. However at that stage of proceedings our advice was that we needed to focus on very specific issues in order not to waste court time and to apply the small amount of funding we had available most efficiently. By the time we entered mediation we had decided not to pursue the laneway width issue, concentrating on the loss of public space issue.
At mediation we (all parties listed above) offered to withdraw our appeals if Precinct and Council would agree to leave the sunny side of Queen Elizabeth Square in public ownership, and to sell the dark side - the part that is shaded by No 1 Queen Street - the HSBC Tower. After deliberating on that proposal overnight Precinct informed us that the proposal was not acceptable, and that the value to them of Queen Elizabeth Square was the frontage to Lower Queen Street.
This meant the appeals were referred to the Environment Court.
Despite efforts made to further focus the issues, the evidence that was produced by the expert witnesses for Precinct Properties and Auckland Council (and Auckland Transport) was high in quantity, quality and complexity - about 500 pages. Much of it was Urban Design and Planning evidence. We had to decide how to focus our efforts.
It pains me to admit that I was somewhat overwhelmed by the tonnage of evidence, and the challenge of mounting a coherent, commensurate and high quality presence and argument in court. Based on a variety of considerations we collectively decided to argue for the retention of the whole of Queen Elizabeth Square. And in doing so, dropped our well-shaped stone.
You will see in the decision a number of mentions of what was termed the "half-way house" option, and references to the fact that option was not argued in Court. Who knows what might have happened had it been argued. The hearing would have been completely different. Interestingly, McIndoe, Urban Design expert for Precinct scored the combination of Lower Queen Street + the sunny side of Queen Elizabeth Square very highly - even with the barrier of the bus shelter still in place. (The LGA provides opportunity for the Environment Court to modify a road stop proposal.)
We've licked our wounds and are moving on. There are some small wins though: the laneway is wider and will be more public; measures of pedestrian movement comfort have been adopted by Auckland Council and Auckland Transport; and - hopefully - Auckland Council will take more care over the sale of public open space in future.
One last thought. We did consider the option of Judicial Review - as opposed to an Environment Court appeal. This would have examined Auckland Council decision-making and public consultation under the Local Government Act. (Recall that the Urban Auckland Inc challenge to the Bledisloe Wharf extension process was a High Court Judicial Review.) However because the Road Stop process is automatically referred to the Environment Court if objections are not accepted, that became the inevitable legal pathway. Enough.
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Wednesday, November 16, 2016
Life After Queen Elizabeth Square
The short version of what happened in the Auckland Architectural Association's legal challenge in the Environment Court of Auckland Council's decision to sell Auckland's Queen Elizabeth Square to Precinct Properties is simple: they won, we lost, and Auckland loses another piece of public land.
When I say "we" there were several incorporated societies and associations that stepped up here: Auckland Architectural Society, Urban Auckland Incorporated, Civic Trust Auckland, Walk Auckland and the Auckland CBD Residents Association.
You can read the Environment Court decision here. You will see that two separate but linked appeals were heard: the Road Stop appeal and the Plan Modification 79 appeal. The Environment Court ruled on the Road Stop appeal (the road stop proposal was upheld), and left the Plan Modification appeal for resolution by the parties by agreement.
It's not a particularly rewarding read because - inevitably - the decision cannot do justice to the sheer volume of work and scholarship - on all sides - that went into this. I estimate that Precinct + Council invested $2,000,000 in mounting and presenting their case to the Court. Some 40 briefs of evidence, substantial legal representation. They wanted to win this. There's a lot we can all learn from what happened. But that will take time. Just a few thoughts for now.
It was a David and Goliath battle, but unlike David, while we had a well-shaped stone, we didn't use it. (This is all with the benefit of hindsight.)
Mediation took place over two days prior to the hearing. At that mediation we learned that Precinct proposed widening the East West laneway to 6 metres. However at that stage of proceedings our advice was that we needed to focus on very specific issues in order not to waste court time and to apply the small amount of funding we had available most efficiently. By the time we entered mediation we had decided not to pursue the laneway width issue, concentrating on the loss of public space issue.
At mediation we (all parties listed above) offered to withdraw our appeals if Precinct and Council would agree to leave the sunny side of Queen Elizabeth Square in public ownership, and to sell the dark side - the part that is shaded by No 1 Queen Street - the HSBC Tower. After deliberating on that proposal overnight Precinct informed us that the proposal was not acceptable, and that the value to them of Queen Elizabeth Square was the frontage to Lower Queen Street.
This meant the appeals were referred to the Environment Court.
Despite efforts made to further focus the issues, the evidence that was produced by the expert witnesses for Precinct Properties and Auckland Council (and Auckland Transport) was high in quantity, quality and complexity - about 500 pages. Much of it was Urban Design and Planning evidence. We had to decide how to focus our efforts.
It pains me to admit that I was somewhat overwhelmed by the tonnage of evidence, and the challenge of mounting a coherent, commensurate and high quality presence and argument in court. Based on a variety of considerations we collectively decided to argue for the retention of the whole of Queen Elizabeth Square. And in doing so, dropped our well-shaped stone.
You will see in the decision a number of mentions of what was termed the "half-way house" option, and references to the fact that option was not argued in Court. Who knows what might have happened had it been argued. The hearing would have been completely different. Interestingly, McIndoe, Urban Design expert for Precinct scored the combination of Lower Queen Street + the sunny side of Queen Elizabeth Square very highly - even with the barrier of the bus shelter still in place. (The LGA provides opportunity for the Environment Court to modify a road stop proposal.)
We've licked our wounds and are moving on. There are some small wins though: the laneway is wider and will be more public; measures of pedestrian movement comfort have been adopted by Auckland Council and Auckland Transport; and - hopefully - Auckland Council will take more care over the sale of public open space in future.
One last thought. We did consider the option of Judicial Review - as opposed to an Environment Court appeal. This would have examined Auckland Council decision-making and public consultation under the Local Government Act. (Recall that the Urban Auckland Inc challenge to the Bledisloe Wharf extension process was a High Court Judicial Review.) However because the Road Stop process is automatically referred to the Environment Court if objections are not accepted, that became the inevitable legal pathway. Enough.
When I say "we" there were several incorporated societies and associations that stepped up here: Auckland Architectural Society, Urban Auckland Incorporated, Civic Trust Auckland, Walk Auckland and the Auckland CBD Residents Association.
You can read the Environment Court decision here. You will see that two separate but linked appeals were heard: the Road Stop appeal and the Plan Modification 79 appeal. The Environment Court ruled on the Road Stop appeal (the road stop proposal was upheld), and left the Plan Modification appeal for resolution by the parties by agreement.
It's not a particularly rewarding read because - inevitably - the decision cannot do justice to the sheer volume of work and scholarship - on all sides - that went into this. I estimate that Precinct + Council invested $2,000,000 in mounting and presenting their case to the Court. Some 40 briefs of evidence, substantial legal representation. They wanted to win this. There's a lot we can all learn from what happened. But that will take time. Just a few thoughts for now.
It was a David and Goliath battle, but unlike David, while we had a well-shaped stone, we didn't use it. (This is all with the benefit of hindsight.)
Mediation took place over two days prior to the hearing. At that mediation we learned that Precinct proposed widening the East West laneway to 6 metres. However at that stage of proceedings our advice was that we needed to focus on very specific issues in order not to waste court time and to apply the small amount of funding we had available most efficiently. By the time we entered mediation we had decided not to pursue the laneway width issue, concentrating on the loss of public space issue.
At mediation we (all parties listed above) offered to withdraw our appeals if Precinct and Council would agree to leave the sunny side of Queen Elizabeth Square in public ownership, and to sell the dark side - the part that is shaded by No 1 Queen Street - the HSBC Tower. After deliberating on that proposal overnight Precinct informed us that the proposal was not acceptable, and that the value to them of Queen Elizabeth Square was the frontage to Lower Queen Street.
This meant the appeals were referred to the Environment Court.
Despite efforts made to further focus the issues, the evidence that was produced by the expert witnesses for Precinct Properties and Auckland Council (and Auckland Transport) was high in quantity, quality and complexity - about 500 pages. Much of it was Urban Design and Planning evidence. We had to decide how to focus our efforts.
It pains me to admit that I was somewhat overwhelmed by the tonnage of evidence, and the challenge of mounting a coherent, commensurate and high quality presence and argument in court. Based on a variety of considerations we collectively decided to argue for the retention of the whole of Queen Elizabeth Square. And in doing so, dropped our well-shaped stone.
You will see in the decision a number of mentions of what was termed the "half-way house" option, and references to the fact that option was not argued in Court. Who knows what might have happened had it been argued. The hearing would have been completely different. Interestingly, McIndoe, Urban Design expert for Precinct scored the combination of Lower Queen Street + the sunny side of Queen Elizabeth Square very highly - even with the barrier of the bus shelter still in place. (The LGA provides opportunity for the Environment Court to modify a road stop proposal.)
We've licked our wounds and are moving on. There are some small wins though: the laneway is wider and will be more public; measures of pedestrian movement comfort have been adopted by Auckland Council and Auckland Transport; and - hopefully - Auckland Council will take more care over the sale of public open space in future.
One last thought. We did consider the option of Judicial Review - as opposed to an Environment Court appeal. This would have examined Auckland Council decision-making and public consultation under the Local Government Act. (Recall that the Urban Auckland Inc challenge to the Bledisloe Wharf extension process was a High Court Judicial Review.) However because the Road Stop process is automatically referred to the Environment Court if objections are not accepted, that became the inevitable legal pathway. Enough.
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