A SHORT SUMMARY OF WHAT HAS HAPPENED.

I obtained resource consent to remove a Norfolk pine tree from my front garden.

The North Shore City Council added conditions to the consent to reverse it, after I had obtained the consent and had already removed the tree.

They would not remove these conditions, despite the tree had already gone and despite the fact permission for removal had already been granted!

I therefore appealed to the Environment Court.

For a year the Council ignored the Court and pressured me to accept the Conditions. We reached a Mediated settlement which I paid the Council $5700 to clear our street side and do some planting. The Council did no clearing and used the loose wording of the agreement to plant the 5 trees shown above. We went back to Court. The Judge agreed that the Council had broken the Contract and asked them to sit down and sort out the tree planting with me. They refused. The Disputes Tribunal gave me back half of my money. Two Independant Engineering reports (one commissioned by Council) and a Landscape Architect say remove the trees. The Council admit that the trees will never grow properly, that some will have to be removed and that there will be ongoing regular pruning costs.  The Council still cling to the trees.

READ ABOUT THE COUNCIL’S BEHAVIOR in these chapters.

Chapter 1 – North Shore City Council, The way they abuse the Resource Management Act.
Chapter 2 – The Resource Consent Hearing.(how they trash the RMA and their own rules)
Chapter 3 – A Year in The Environment Court.(who lay down and let Council run right over them)
Chapter 4 – The Mediation and Council’s complete disregard for the Agreement reached.
Chapter 5 – Return to the Environment Court. This time Justice from a determined Judge.
Chapter 6 – The Disputes Tribunal refund half of my money and the Council try to conceal their costs.
Chapter 7 – North Shore City get another Engineers report, censor it and ignore it.
Chapter 8 – What steps I want taken by the New Management to stop this behavior.
Blogs – on progress of the continuing saga and rising costs.

Auckland Council

Auckland City Council

This is about the Auckland City Council staff flouting Laws and By-Laws and altering a Resource Consent which they did not like. When challenged, they admitted what they had done but refused to discuss it. So far they have spent $70,000, firstly to attack and intimidate me into giving up and when that didn’t work then to defend their ongoing near psychopathic behaviour.

During this time they have, as the documentation shows,
- Lied a lot
- destroyed evidence
- withheld evidence
- broken and treated the RMA with distain
- broken their own By-Laws
- censored documents to protect their behaviour.
- ignored the Environment Court’s directions
- broken a mediated agreement
- incurred the wrath of the Environment Court
- used expensive and complicit Lawyers for everything
- have generally behaved like seven year old bullies.

They were eventually forced to withdraw the Conditions that they had changed. Their response to this was to plant three of the largest species of Pohutukawa and two Norfolk pines in a tight little clump across the road from my house. This petulant act of arboricultural vandalism will be an ugly mess and will not enhance the neighbourhood. The Auckland City Council even admit the trees will not grow properly, some will die, some will have to be removed and the survivors will require ongoing expensive maintenance. These trees will also block the residents views.

So far this act has been criticised by a Senior Environment Court Judge and his Commissioners, a respected Landscape Architect, a Consultant Arborist, a Disputes Tribunal Commissioner and an independent Geotechnical Engineer. Every member of the public who have seen what the Auckland City Council have done has condemned it.
But still determined, the Auckland City Council have just obtained their own report from a local Geotechnical Engineer. He also recommends the removal of the trees.
I have come to believe that if Hitler himself came down and told them that what they have done is wrong and that they should fix it, that they would even ignore him.
What has really amazed me is that from the very start of this most staff that I have dealt with, from the chief and senior executives down, have been complicit in the deceit, evasion and arrogant defence. The Auckland City Council simply has no effective Management and some staff are out of control.
This behaviour would send any normal Company bankrupt.

I will keep writing this until the full story is told of how these people are happy to bludgeon residents into submission at any cost.
About the Councils Lawyer’s tricks, the ineffectiveness and unwillingness of the Ombudswoman, the accepted arrogant behaviour of the Council by the Environment Court on our first of two visits there, the strange relationship between the Council and their insurers and of course the behaviour of Auckland City Council staff themselves.

I also will give my views on proper steps the new Super City management should take to stop this.

I know that the situation I found myself in has happened before and will certainly continue to happen unless something is done.

Auckland City Council

Auckland City Council

I applied for Resource Consent to remove a Norfolk Pine from my front garden. After the Council delaying for three months more than allowed by the Act, the Consent Hearing was held. A Secretary took minutes throughout the four hour hearing
The Council were vehemently opposed to my application. They employed dirty tricks to stop it succeeding, like.
- Withholding from the Hearing Commissioners a lot of my supporting evidence.
- Withholding an Arborists report that I had submitted which said of my tree, “there are no symptoms or signs which would be typical of poisoning”.
- They replaced this with their own new Arborists report stating “the applicants Arborist does speculate upon and describes the symptoms of a possible poisoning as a reason for this tree being in decline”.
- They withheld this new report from me.
- My submission talked of regular street flooding because of debris from the Norfolk Pine blocking a road cesspit.
- The Council’s Arborist simple solution was for me to keep the street and drains clean.
There was more of this manipulation. I had not expected this behaviour.

However despite this, the Commissioners voted an unconditional 2 to 1 approval to remove the Norfolk Pine. They shook my hand and I left.

The North Shore City did not like this Consent. When the Council issued the “Minutes” it was one page of slanted fiction. But, to the Approval document they had added 11 new clauses. To accept these clauses would have meant ripping out the heart of our Japanese garden and having a huge Himilayan Cedar lay waste to the front of our house. Why were the Council staff forcing this upon a ratepayer?

Put this in your front garden!

The Resource Consent Hearing. Or “how the North Shore City trashed the RMA, and their own rules.”

If the Commissioners had wanted to impose these conditions I would have withdrawn my application and left the hearing.
The Council had cleverly and illegally overturned the Commissioners decision.

This Himalayan Cedar is what the Council wanted.
Below is the Japanese Garden where they wanted it

I cut down the tree anyhow and requested a meeting with the Council to sort out the added conditions.
They refused to talk as they have done many times since.
The Council admitted they had added the Conditions but just challenged me to take them to Court. For a year they, with their lawyers tried to bully me into giving up. The Council’s Resource Management Group Manager said, “Flavell pushed and pushed. — someone going to such lengths in a case is unheard of”.
Quote “They will always find money for Lawyers but never to clean up the gorse in the local parks.”

I later went to the Ombudswoman. First step was to try and wriggle out. She accepted the Council’s behavior . “a resource hearing is an adversarial process”. She accepted the adding of Clauses. “there is nothing untoward or unlawful about the addition of conditions to the Consent after the Hearing has concluded – in fact this appears to be standard practice for Consent Authorities”. I asked her to show me where in any Law this is allowed. She declined. She then actually commended the Council for only being 3 months late.
There was not one word of condemnation at what the Council had done even though she had full documented evidence.

The Ombudswoman just took the Council’s excuses as legitimate justification. She also said that they would change their ways and told me that I should be happy with that. The evidence shows this to be wrong. I told her that she saw Grandma but I saw the Big Bad Wolf, that she had empowered the North Shore City to continue this behaviour and had let down the residents

Auckland City Council

Auckland City Council

This was the first time that I had ever been involved in any Court action and it was far from justice.

-The Council had employed a Simpson Grierson Lawyer as Appeals Manager.
-The Judge issued to the Council an instruction to “lodge in the Court within 50 days” full details of progress on a list of 8 items about negotiating a settlement.
-At day 47 we rang the Council who said “we will not negotiate this.”
-The Council never complied with or replied to the Judges letter
-The Court did nothing.
- I wrote to the Court twice asking them to do something about getting the Council to comply.
-They did nothing.

To prove that the Council had added the conditions I asked for the proper notes taken by the secretary and the Minutes and Approval signed off by the Commissioners.
They had disappeared. There was no approved record. Both of these are certainly required by the Councils Standing Orders and are standard requirements for every club and body in the country.
But the Lawyer tried to mislead me and said:
- Of the Minutes. “keeping them is not strictly necessary anyway”
- Of the signed document “there is no document that gets signed/dated by the hearings commissioners”

So his behaviour was no better than the Councils. It is sick that a public body and their Lawyer will go to such lengths to cover up and try to beat up someone with a very legitimate and documented complaint.

For a year, all Simpson Grierson Lawyer did was threaten sue me for cutting down the Norfolk if I did not agree to the added Conditions.
- He wrote to the Court saying that negotiations had broken down.
- I wrote a 3rd letter to the Court.
- Nothing
-The Council did not file the required response to my appeal within the statutory time allowed. They were 3 months late.
- The Court broke the Law and a Registrar granted them a dispensation to allow them to file late.
- Six Months later the Court held a hearing about this dispensation. The Judge’s decision was delivered to me in a bucket because it contained so much whitewash.
He also said no one was unduly prejudiced. He even had a go at me. He said I was intransigent because I insisted that the Council remove all but one of the Conditions. Well, a week later that is exactly what happened. Had the Court sought the facts he would have known that the Council had added the Conditions to the Consent.
My family and I had gone through a lot of pain and stress in that year as the Court just sat back and let the Council go for me. I lacked respect for the Court because they did not earn it.
Thus the whole first year was a disaster. I believe the Court could have achieved a resolution if they had shown determination. Instead they lay down and the Council ran right over them.

I asked the Judicial Conduct and Special Jurisdiction complaints people to look at the performance of the Court.
Even though the Court, in my view, had allowed the Council to be in Contempt and had broken the Law, I was wasting my time.

It is as if the rules for investigation of Courts and Councils are written by Courts and Councils. I felt that the Investigators, even though they had ample clear written evidence, were using everything to avoid and dissuade me from pursuing a complaint.
It was not Justice as I know or understand it. I know from my experience later in the Environment Court that a very robust investigation can be carried out in pursuit of Justice.

Auckland City Council

How the North Shore City Council breaks another Agreement.

The Simpson Grierson Lawyer once said to me “it is not what is agreed in the meeting that counts, it is what is written afterwards”. Fascinating!

After the Environment Court we went to a Court appointed Mediation.
The Lawyer, the Arborist and a Town planner were present. The Mediator, a planning commissioner, was brilliant.
First the Council withdrew all of the Conditions that I had appealed. Just like that! Then the Mediator asked that I mitigate the loss of the Norfolk Pine. Planting trees in nearby parks wasn’t an option so I proposed that I pay for the clean up and replanting of 70 meters of the neglected gorse and rubbishy bank alongside our street Marine Tce. The Council said $3000 to $3500. I priced it and offered $5700 to do a proper job. The Mediator said “do not plant trees that will grow tall because in 10 years the neighbours will come and chop them down”.
The written agreement stated that for the money the Council would clear the bank and plant 3 pohutukawa and 2 specimen trees and “be solely responsible for the selection and location of the trees”. I happily signed it. Big mistake. The Lawyer wrote it. Very slippery,

Guess what happened next. The Arborist and a Parks Arborist came and knocked on my door and said “We are going to clean up the bank and want to discuss planting with you”. No, of course they didn’t. They sneaked down, handed my $5500 to a Contractor, got him to clear a small patch in the gorse and plant two Norfolk Pines and three of the largest species of Pohutukawa. These are each two and a half meters apart, right below the crib wall, across the road from my house.

Some comments on this Planting have been

- An Environment Court Judge (from the next appearance in Court), the Disputes Tribunal, a Landscape Architect and a Consultant Arborist have slated this planting for its location and tree selection.
-A Consultant Engineer says that the trees as planted will result in “a high potential failure of the crib wall with a high probability of a resulting landslide”. (Of the street)
-Reported comments by normal people, “they must hate you” “psychopaths” and “arboricultural vandalism”
I wrote to the Council expressing concern for the stability of the crib wall. Their Issues Resolution Manager said, “these will not pose any threat to the crib wall or the carriageway either now or in the future”. I asked for details of the qualified person who said this. The Council Lawyer replied, “the Council does not have anything to add in relation to your road stability questions”. The Council had just tried to mislead me again.

When Council Management refused to meet me to look at what their staff had done I asked the Environment Court to intervene. Now this time it was a different Judge and a totally different performance.

Auckland City Council

I was not going to accept what the North Shore City had done so I applied for an enforcement order from the Environment Court.
This Judge wanted the truth and went looking for it. He did everything within his rules to administer Justice. He even tried to get the Council to concede some matters in the interests of Justice
I had intended to call the Mediator and that she would confirm the intent of my offer of $5700 but I discovered that the “without prejudice” Mediation precluded this.
I knew then that the Judge would have to find for the Council and that I would most probably have to pay the Council’s costs.
I decided to have my day in court.

The Council staff’s testimony was an eye opener for me.

The Issues Resolution Manager testified that he had seen the Document that was witnessed and signed off by the Commissioners. The Lawyer had told me that there was “no such document” which I also believe. This Issues resolution Manager also testified that in his view the Council had complied with the mediated agreement and that the trees had been planted in a prudent way.
I started to realise that the people who I was dealing with would do anything to show solidarity with their cohorts and be prepared to do it under oath.

The Parks Arborist admitted that he had indicated to the Contractor what his price should be. (Quotes I obtained show a contract should have been let for half the amount.) Later the Council’s Resource Management Group Manager said that I was upset because “I though I had not got a bang for my bucks”. Well Mr Manager, ratepayers will never get “bangs for their bucks” when your staff are telling contractors what amount to put in their quotes.
The Parks Arborist said that he had planted the trees in that way because that is what I had requested. He also said that he did not clear and plant the whole street side because he would require Community Board and neighbours approval. The North Shore City has no such requirement. He also admitted that the trees should have been planted further apart.

The Council Arborist, that had been in from the start of this, testified that even though he had directed the tree planting, 1 or 2 would have to be removed as they grew larger. He dismissed the damning conclusions of the Independent Landscape Architect, Independent Arborist and the Geotechnical Engineer. He rubbished them. He even said that if his Council Engineers told him not to plant the trees because there was a high probability of them causing a landside of the street, that he would still have planted them.

These are only snippets of the evidence given in Court. I got to wondering. If these people lied, then did they understand that what they said was a lie, or, was their psyche such that they believed whatever they said would have to be true, or, was it just that they thought they had some sort of immunity.

The Judge repeatedly asked that the Council sit down with me and sort it out. “This is a situation that screams out for a pragmatic solution.” He even offered one of his Commissioners to sit with us.
Simpson Grierson Lawyer refused and said that “(To negotiate) encourages the public view that the Council is somehow withdrawing from agreements it’s made and is not honouring them”.
That statement encapsulates the sickness that I am still encountering.

I knew when he said that, the Judge would probably not make me pay the Councils $20,000 costs.

The Council had used the clever wording of our agreement to carry out a stupid act and then spend $20,000 defending it.

The Judge, correctly found that the Council had the right to plant the trees where they choose but said they would pay their own costs. He also found that the Council had a contract with me and that it had been changed.

So the Council said “we won”.

Auckland City Council

Auckland City Council

After the Judges Decision I sent the Council Chief Executive details from the Judges Decision, the transcripts and evidence showing the condemnation of their actions did not constitute a “Win” and asked again to meet. Silence.

So I applied to the Dispute Tribunal where the Referee has wide powers to be fair. I filed a claim as the Council refused to complete the Contract.

The council went to Simpson Grierson who told them that my action would not be successful.
Wrong, – I was awarded nearly half my money back.

The Council had been asked what the dispute was costing the Ratepayers. I understand that their first response was to invite that enquirer for a cup of coffee and a chat. Then they started at about $30,000 and after “prompts” had 3 further attempts at the truth and got to $45,000. They acknowledged that this did not include the first time in the Environment Court or costs for time spent by Senior Management which involved quite a lot including a six page letter to the Ombudswoman. (I told her that) It also did not include money refunded to me so a reasonable estimate of these excluded costs would be a further $15,000. The reason given by them for omitting costs is because though they admit there are costs they can not find them so they don’t count.

The Ombudswoman says this is OK and ignores the fact that Council have had 4 goes at hiding the truth. So from now on the Council just have to quote the “we can’t find it” immunity rule.

So $60,000 it is and still going up.

Auckland City Council

I had got from the Yellow Pages an independent Geotechnical Engineer who submitted a report to the Court. It said that there was a high probability that the five trees planted by the Council would tip over the Crib wall holding up our street with the street then falling down the bank.
The Council refused to respond to this so I approached the Risk Management Pool who insure most Councils. I offered them the Report and asked that they confirm that they would accept liability for all claims should the street collapseNow this appears to be a very strange relationship as after approaching one director and the Chairman it was made clear by them that they would deal only with the council.
This means that the Risk pool will not hear any evidence against the Council and of course the Council would not tell them of the Engineering report and the Risk Pool would shell out if the road collapsed. These would be considerable as the Council had been forewarned.
The North Shore City decided to get an Engineering report of their own (more cost) and asked a local consultancy for a report. I had deliberately asked a specialist Engineer from outside the area.
This Engineer did not agree about the extent of damage to the wall but did recommend the removal of the trees. He also said that the Norfolk Pines being shallow rooted and in an exposed sloping area that had already slipped once should go. Ie they would eventually blow over and in my view that as they would be less than a meter from the wall they would take it with them.
It appears that the Council have ignored this.
I asked for details of all internal and external communications on this. After at first denying, the Council “found” the correspondence. They omitted all of their own internal correspondence and censored their Engineer’s request and the Consultants response. They claimed a Law allows this. Surely a Council behaving responsibly should have nothing to hide.

We will see. I will place updates on progress.
The Council still clings to the trees.

Auckland City Council

The only purpose for the Councils existence is to serve its citizens.

Some Council staff and Management have built a big wall around themselves.
The task is to take down this wall and make staff answerable for their actions.

Firstly I would monitor everything. Everything!

I would replace those Managers who are past their use-by date with proper capable managers.
The existing Complaints system is in my experience as just a “con the public” set up. The new Chief Executive would set up a well publicised Completely Independent Body (not part of the Council proper) which would receive complaints and suggestions. These would be from both the public and staff and anonymous if necessary. I believe some staff are bullied or forced to do and say things against their principles.
All complaints would have a proper investigation and numbers would soon start to drop The new Chief would spot check progress with a letter to applicants inviting feedback.
The senior managers would have a proper brief of their responsibilities and be held accountable for misbehavior within their sections.
I would set in place a clear set of rules or protocols for handling Resource Consents (Cf. Hamilton City). The RMA is weak as it relies on the integrity of Council. Currently some people are ambushed and unable to fight back. If disputed decisions are outside the new rules or protocols then that Consent decision would be a nullity, no court, no argument. Pointless Hearings where the community the Applicant and Council are in harmony would be dispensed with.

I would drop the Council’s $150,000 “no quotes necessary” threshold to zero. I would require every purchase to go through a purchasing department preferably headed by a Quantity Surveyor/Estimator. No other staff could handle expenditure. Wastage would drop. Some of the Contractors that I approached to price the work on the bank would not do so for fear of Council reprisals. One told me he would be blacklisted. Contractors would not be employed at the whim of staff so no blacklists.
With transparent purchasing comes big cost benefits.

The use of outside Arborist and other Consultants would be controlled. This would certainly save unnecessary waste that I have observed.

Lawyers. Though not illegal I saw the relationship between the Council and Simpson Grierson badly set up. Protecting staff for whatever reason at all costs even when it should have been obvious is not my idea of what Lawyers should do. In acting the way they did, albeit probably at the direction of the involved Council staff, I believe they cost the Council unnecessary fees. No Legal Firm would be employed until the Chief and a lay observer were satisfied all avenues had been explored. Perhaps local Lawyers would be better.

Insurance. The Risk Pool which carries Councils Insurance has a strange clandestine way of dealing with risk. This must be costly. I would look to obtain Quotes direct from Insurance Companies.

SO WHAT DO I WANT?

-The new administration to look at what happened to me and accept that it will happen again and again in many forms.
-The new administration to implement my recommendations.
-The new administration, as a priority, to establish the Council as a user friendly organisation committed to serving the Community.
-The wasting of public money to stop.

The right person would achieve these goals.

Auckland City Council