This is an open letter sent to the Island Bay Resident's Association's lawyer Con Anastasiou on 26 June 2018.
Kia ora Con,
I understand you are acting on behalf of the Island Bay Residents Association (IBRA) who are seeking a judicial review of Wellington City Council's decision-making in regard to the Island Bay Cycleway. I'm writing to you as an IBRA member in order to raise some concerns that I think you need to be aware of before you advise the IBRA committee about whether or not to proceed. Full disclosure - I am a supporter of the cycleway and over the past four years have written about it extensively at Island Bay Cycle Way. I have already written specifically about the judicial review here: Why I support the judicial review (please don't be fooled by the tongue-in-cheek title).
My first concern is that the IBRA committee have not consulted with the wider membership before embarking on this course of action. There was no indication at all via email or Facebook about what they were planning. It may have been discussed at the two meetings they held between their AGM in October 2017 and announcing their intent to pursue a judicial review in May (I did not attend either of those meetings in February 2018 & April 2018) but they have certainly not gone to any great lengths to be open and consultative in their decision-making. I'm also concerned that by taking this action they are stepping outside the objects of the association, in particular object d) to ensure all ideas and viewpoints can be represented, and object f) to represent Island Bay but not to make decisions on behalf of Island Bay residents.
Another concern is that as IBRA's lawyer you are fully aware of the amount of information that already sits in the public domain regarding the council's decision-making process. IBRA's 25 June 2018 email update to members states that "At present the WCC is stalling the process. WCC have added another 20 working days to supply the information requested under the Official Information Request (Logima) [sic]. They have also stated we must pay $4k for this information." It concerns me that any unnecessary costs are incurred by IBRA on this exercise (including legal fees and LGOIMA charges) when they are currently collecting money from the public to pay for it. It's my belief that there is already more than enough information publicly available to enable you to give advice to the IBRA committee on whether or not to proceed that is consistent with your professional obligations.
I would greatly appreciate you confirming by return email that you are aware of and have read the following:
A simple Google search will also establish the full depth and breadth of consultation efforts by the council over the course of 4 years.
I am aware of several recent high-profile failures by community groups to overturn similar decisions and that the High Court will set a high threshold for this decision to be reviewed. In particular I note the recent decision regarding Chamberlain Park in Auckland in which the Court's decision clearly stated "The approach taken by the Albert-Eden Local Board (AELB) was neither perfunctory or a mere formality. It engaged in a robust process of consultation where multiple interest groups participated in an open and at times hotly contested debate concerning the best use of Chamberlain Park. Moreover, and crucially, consultation must not be equated with negotiation. The process embarked on was not one which had as its object arriving at a solution which represented some form of consensus. There was no requirement for the AELB to accept the views and preferences or even reach a compromise with those who sought the maintenance of the status quo."
You should also know that as an IBRA member who supports the cycleway and opposes the IBRA committee's current course of action I intend to support the council in defending themselves against these proceedings. Despite my blog post on the judicial review linked above I am very concerned about this review going any further. My hope is that the IBRA committee receives fully informed and professional advice from you that is consistent with the Law Society's client care requirements and minimises the costs (both money and time) that IBRA and the rest of the community are potentially exposed to.
Thank you for your consideration of these concerns.