Stadium challenge questioned

A Queenstown man trying to stop Otago Regional Council funding for the Forsyth Barr stadium in Dunedin came up against a High Court judge who questioned many of his arguments yesterday.

Basil Walker, who is seeking a judicial review of the funding decision, represented himself at the High Court at Dunedin hearing before Justice Graham Lang, with Alastair Logan counsel for the ORC.

The ORC has agreed to contribute $37.5 million towards construction of the $198 million stadium, and yesterday's hearing followed a May hearing in which Mr Walker attempted to gain an interim injunction.

The first matter of the day was Justice Lang's questioning of Mr Walker, an undischarged bankrupt, as to whether he was a ratepayer, and had the right to bring the case against the council.

Mr Walker said he was not a ratepayer, and would not be until after bankruptcy proceedings were finished.

Justice Lang accepted that payment of the council's funding would fall on ratepayers over a number of years, and Mr Walker could be a ratepayer in future, so the case could proceed.

Mr Walker's submission developed into a long-running debate, as Justice Lang repeatedly intervened to question his arguments and assumptions.

Mr Walker made clear his concerns about consultation, and the council's decisions, but was told for the first of many times the court could not rule on political decisions.

He told the court the stadium would be built on a flood-prone area in a time of climate change.

"That is a merit based argument," Justice Lang told him. "I can't go there."

Mr Walker argued the council had not disclosed its funding would be sourced from borrowings, and there were what he called "undisclosed interest" costs.

"From the outset the borrowing has been disclosed," Justice Lang told him, the council had said that consistently, and made it "absolutely clear".

Mr Walker responded later in the hearing the cost with interest was $82 million, and the $37.5 million figure was "much more sellable than the truth".

He said having Otago's regional councils help provide the funding was a dangerous precedent.

"Again you may say it is a dangerous precedent. That's very much a political matter. I can only interfere if there is something unlawful," Justice Lang responded.

Mr Walker said the council had agreed to part-fund the stadium on June 25 last year, subject to conditions.

Those conditions had been "blatantly disregarded".

There was a long debate late in the day about whether the regional council would have to pay GST.

Mr Walker raised the issue during his initial argument, and again when responding to Mr Logan.

He said if the council paid, for instance, $1 million, that would become $1.125 million with GST.

But Justice Lang said he did not think that applied to a grant.

Even if the council did pay GST, it would get it back.

Mr Walker responded that was correct, but GST would apply if the stadium was sold or transferred.

Justice Lang said that had nothing to do with the council, as it would not own the stadium.

Another area that caused argument was Mr Walker's assertion the Government's $15 million grant for the stadium "contains a caveat clause that the funding is conditional upon the stadium being completed for the [Rugby] World Cup in 2011".

But a letter from Rugby World Cup Minister Murray McCully said the Crown would provide a grant, "with an expectation that the stadium will be completed and available for the Rugby World Cup".

Referring to the letter, Justice Lang said: "You say it's a condition. It just says it is an expectation."

Mr Logan responded to the Mr Walker's submission, and noted the wisdom of the council's decision was a matter for elected members.

"Mr Walker is perfectly entitled to believe the majority has made the wrong decision," Mr Logan said"That is not sufficient for him to succeed on judicial review."

Justice Lang reserved his decision, which he said he would give within seven days.

- david.loughrey@odt.co.nz