Concerning developments in Shirley Waru vs Tūpuna Maunga Authority and Auckland Council judicial review
There have been several very concerning developments since the High Court’s decision on the Shirley Waru vs Tūpuna Maunga Authority and Auckland Council judicial review.
The case concerned the Council’s decision to grant the Authority a non-notified resource consent to fell 278 non-native trees on Ōtāhuhu Mt Richmond, almost half of the trees on this reserve. The effect of granting a “non-notified” resource consent was to deny the public an opportunity to participate in the resource consent process.
In her decision, Justice Tahana found that the Council, in considering the resource consent application, had failed to properly consider the proposed felling’s adverse effects on the amenity of the maunga. As a result, the Court has set aside the resource consent.
TMA appeals to Supreme Court and Court of Appeal
Barely a week after the decision, Tūpuna Maunga Authority applied for leave to appeal to the Supreme Court. The court has yet to determine the application. The Authority then applied to the Court of Appeal as a fall-back should the Supreme Court deny the application.
In both appeals the Authority has named Shirley as first respondent and Auckland Council as the second. Auckland Council has advised that it will not be participating in the appeal process.
All of this is resulting in more cost for Shirley. She is having to crowd-fund again to raise funds to oppose the TMA’s attempts to overturn the High Court’s decision.
Appeal decision made without consulting TMA board members!
So far as we have been able to ascertain, apart from the TMA’s Chairperson, none of the TMA members were informed about the judicial decision. Nor were they given any opportunity to discuss much less vote upon the significant decision to try to challenge the High Court’s judgment.
The Authority had a window of four weeks to lodge any appeals, so there was no excuse for failing to consult with its board on such an expensive and controversial decision, much less rush to lodge an appeal within a few days of the decision being delivered. We believe this unilateral action is both legally and morally questionable.
It seems Tūpuna Maunga Authority is moving from being a supposed co-governance organisation, to being a no-governance one!
Cost to ratepayers
This financial year Auckland Council is funding TMA’s operational budget to the tune of $13.5 million. On top of that, it pays for extras such as staffing and other administrative costs – something it is required to do by law.
However, the legal costs for maunga-related judicial action do not come out of the TMA’s operational budget. Instead they are funded from the Auckland Council legal services budget. So now we have the ridiculous situation where the Council is having to fund legal action against itself!
Official information requests show that, as of 4 July, TMA has incurred around $150,000 of legal fees and costs in relation to the Ōtāhuhu Mt Richmond judicial proceedings. These costs will continue to mount. This is on top of the $1 million cost to ratepayers in relation to the Ōwairaka Mt Albert judicial review and subsequent appeal.
TMA no-governance
The TMA’s Auckland Council members are supposedly there to represent “the other people of Auckland” yet not one of them appears to have had any say in the expensive ratepayer-funded judicial appeal decisions at a time when the Council is in debt and services are being slashed across the city.
Tūpuna Maunga Authority is doing itself and all the peoples they represent a disservice by treating its members in such a cynical way. TMA members and Auckland Council alike need to take decisive action and not only insist that a proper process is followed, but to also put a stop to more wasteful and expensive litigation.