Stop the Stadium's counsel Len Andersen called
yesterday for a contract to build the Forsyth Barr Stadium to
be quashed so "proper consultation" could be held, despite
being told the horse may have already bolted.
Mr Andersen took his client's argument to the Court of Appeal
in Wellington, and claimed Dunedin ratepayers had not been
properly informed about the costs of stadium.
He was exposed to a barrage of questions from Justices Mark
O'Regan, Ronald Young and Geoffrey Venning, challenging his
arguments and questioning why he had left it until after the
contract was signed with Hawkins Construction to notify the
group's appeal.
The council responded through its counsel, Frazer Barton,
local authorities would end up in a "strait-jacket" if exact
numbers had to be pinned down during consultation for
evolving projects.
Stop the Stadium's legal battles to end the Forsyth Barr
Stadium began in April.
The group attempted to gain an injunction in the High Court
in Christchurch to stop the Dunedin City Council signing a
construction contract with Hawkins Construction to build the
project, but was unsuccessful.
Mr Andersen argued then there were significant differences in
the project between last year's annual plan and this year's
plan, and the council should have consulted again before it
went ahead with the project.
But Justice Lester Chisholm was not convinced. The contract
was signed, and building of the stadium began.
In May, the group announced it would appeal the decision, and
said Justice Chisholm had erred in his judgement.
Extensive affidavits from both sides had been presented to
the court before yesterday's hearing.
Mr Andersen was asked what outcome he was seeking, when the
stadium was already being built.
He told the court he wanted the contract quashed, and
ratepayers given the opportunity to make a decision, as the
"true costs" had not been the subject of consultation.
Justice O'Regan said instead of applying to get the contract
"stayed" as soon as he lost the High Court case, he had
waited two weeks before appealing.
"There's an element of the door being left open, and the
horse having bolted," he said.
"If you wanted to stop this after the High Court decision,
you could have.
"You didn't."
The court now faced the problem of "how to put the horse
back" if it ruled for Stop the Stadium.
Stadium - law vs practicalities
I would have thought that as long as the appeal was notified within the allowable period, any other timing is irrelevant in law.
Similarly, the fact that the DCC decided to start the stadium before legal processes were concluded, should have no bearing on the legal facts of the case.
If the judges are giving these issues serious consideration, then it must be asked if they are judging on legal issues, or on practicalities.
And if it's the later, then the whole legal process and those involved in it become an irrelevant farce.
Wasn't there money the first time either...
As a stadium supporter, I think this action is ill-conceived, and reading between the lines it is not going to succeed. However, this brings the issue to the forefront, should there not be another mechanism for residents to deal with issues rather than just taking legal action which costs everybody hundreds of thousands of dollars? Should there not be a central government body that can act as an arbitrator in cases like this, that can hand down rulings that councils must obey?
The cases it looks at would have to be of city-wide importance, as you would get people taking petty cases to the body every five minutes. There will be no winner out of this (except the lawyers). If the contract is cancelled the council, or should I say ratepayers, will be out millions of dollars. If council wins, STS, the ratepayers again, will be out hundreds of thousands of dollars in legal fees and costs awarded. No one will win here, and I still can't see the point of the action.
Construction has already begun, and STS has had years to get all of the legal challenges out of the way, but failed to do so. Why now, when there is millions at stake? And if there are so many people irate about the stadium, why is it left to Bev Butler to do all the work, take all of the criticism, and to scrounge enough money. Surely there would be enough professionals in Dunedin who would give their services for free? No one seems prepared to put money where their mouths are. If they were, would it would have taken 2 weeks to get an appeal together.
Ratepayers lose either way
Although heaps of our money has already been spent, abandoning the Awatea Rugby Stadiun now will result in a huge saving over the next 50 years. Stopping it now will save Dunedin/Otago residents $15 million per year (approximately) in net operating losses (including depreciation). Over the 50 year expected lifespan, that is a saving of $750 million. All we get for that are two class B rugby games each year (everything else can be hosted elsewhere), and a bunch of power hungry Councillors with highly inflated egos.
I completely agree
We shouldn't have to come to this - the council should have realised that this was a divisive issue (there were people marching in the streets for heaven's sake), published all the information and before signing anything held a referendum - I'd have been quite happy if that had happened and the citizens had voted for the stadium.
I think that we probably need a better way to get the council's attention in situations like this - being able to force a binding referendum, say from a petition by 15% of the population would be one way, or a perhaps a US-style recall vote (where a citizen petition triggers a vote on whether the council members should be kicked out and replaced by another election, or even the same election) - or both.
It's likely that just having these mechanisms in place would tend to make the council more responsive to their citizens - and once they'd been used once or twice we'd get a council that worked more in its citizens larger interest.
By the way I think it did just take about 2 weeks to get the appeal together, it was announced months ago not long after the original decision - after all it's just the same information that was presented in the original case being presented for review again - but the appeals court doesn't just have spare judges sitting there waiting for appeals to appear - one has to wait for them to schedule your case before you get a court date. The judge in the original case had the discrepancies in the council's case pointed out to him but claimed he didn't understand the provided spreadsheet - he rushed through a ruling because the city's brinkmanship had had them already sign the contract.
delay ...
as I understand it STS's 2 week delay was because it had to raise the money to pay for the appeal before it could go forward - unlike the council it can't just throw our money willy-nilly at things. Remember the council actually signed the contract a week before the original court case had even completed - so it was just a done deal the day the judge ruled as it was 2 weeks later.