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.
Mr Andersen responded if a stay had been granted, it would have "killed" the project, cost the council millions of dollars, and Stop the Stadium could not have paid costs if it lost.
Justice Venning asked if the practical effect of a delay for more consultation was "you may as well forget" the stadium going ahead.
Mr Andersen accepted that was the case.
The basis of Mr Andersen's appeal was that the High Court decision wrongly ruled the extra costs of the stadium would be met by a $15 million contribution from the Government. There were significant changes to the project after consultation was completed, and the council was legally required to complete consultation before it signed a contract.
The cost to the council had increased from $91.4 million to $109.9 million, and while ratepayers were told they would pay $5 million a year to council companies, there was another "hidden" $5 million a year the companies would have to find, meaning the real cost was $10 million.
There had been been no consultation on the other $5 million, and no consultation on changes to the total of the council's funding.
Mr Barton said if further consultation was required, the project could not go ahead, as timing was critical.
The project had evolved, and he asked how the council could have consulted on an interest rate, for instance, that had changed from 9% to 7.7% then 6.3% as time progressed.
Staff and consultants made "reasonable predictions", but could not absolutely guarantee prices.
The effect on ratepayers was a cost of $66 a year, which was the "ultimate yardstick", and one cost that had remained static.
Justice Venning said there was an increase to the cost from $10 million extra paid for land, and $3 million less received from the Community Trust of Otago.
"That's the bottom line, even taking into account the [Government's] $15 million?"Mr Barton said that was correct.
Justice Young brought up what was an inaccurate claim in an annual plan document the council's contribution was $85 million, when in fact it was $98 million.
Mr Barton said that was a mistake, although there was "an obvious inference" of the cost that could be drawn from the rest of the document.
"It is misleading isn't it?" Justice Young asked.
"I accept that's the mistake that's been made," Mr Barton replied.
Justice O'Regan reserved the decision.