As a small sideshow in the recent Covid-19 dominated news, a Public Works Act (PWA) fight in rural New Zealand has managed to grab some column inches.
Some of the commentary surrounding this case piqued my interest, as I was recently involved in a PWA case for more than two years. Going through that process I was neither impressed by the legislation as it stands, nor the application of it.
That application extended from a blatant, arrogant disregard for the true effects on property owners, to the lack of commercial awareness of some consultants engaged by those belligerently forcing through land acquisitions, hiding behind the legislation when conducting supposed good faith discussions and negotiations.
The essential basis of the Public Works Act is to enable public projects (works) to be undertaken. At times privately owned property literally stands in the way. The Act provides a mechanism for public bodies to compulsorily acquire those properties to enable the works.
Compensation is paid to those whose properties are taken off them, and the principle is that no one is to be left worse off than they were before the acquisition.
Unfortunately the valuation process is fraught with fishhooks, and the owner is usually deprived of any potential future growth in value.
On rare occasions, particularly where only part of a property is being acquired, properties being acquired may deemed to be improved by the works being contemplated. This can happen if, for example, some land is taken from a property to allow installation or provision of a better power or water supply. The remaining part of the property from which the land was taken could conceivably have a higher value after the works than beforehand.
The issue I was involved in related to the City Rail Link (CRL) in Auckland, an 'unprecedented' project in New Zealand's history. That word - unprecedented. Not often used, but more recently perhaps overused as we have seen the pandemic rapidly sweep the world.
It was that connection, and the now very real matter of 'billions' becoming the new 'millions' when it comes to throwing open the public purse, that prompted me to revisit reports on the handling of the effects of the CRL project on land and business owners in central Auckland.
I did this with a fresh sense of 'unprecedented', with an appreciation of what some landowners in the Waikato region of New Zealand are currently facing, and with the added context of the recent massive, swift and largely unchecked handout of public funds as a result of the pandemic.
It reaffirmed to me that yes, the PWA does need to be overhauled, but more pertinently - why on earth have Government Ministers and City Mayors up until now been baulking at just doing the right thing for people negatively affected by works enabled by the PWA?
Businesses located on Albert Street in particular in Auckland's CBD have had very restricted access to their premises throughout CRL's works, suffering huge - in some cases, critical - losses in revenue. There is no provision in the PWA to compensate those business owners. CRL's works have not only drastically affected those businesses directly, but have over-run their planned timeframe. The pain continues.
The CRL project was planned. Its effects on business were known ahead of time. There was ample opportunity to consult, inform and to put in place contingency measures. Such measures should have allowed for delays, over-runs, and the unexpected. Surely? Apparently not.
In the face of pleas from businesses affected to the point that they have either closed their doors or are in danger of having to do so, Mayors and Ministers continued to fight and resist. Why? Because they could. Because they could hide behind outdated and poorly applied legislation.
And yet, when faced with the onset of a pandemic, the purse was opened. Billions of dollars have flowed through the floodgates. Billions of dollars have been paid out to employers of business that were unable to open - or at best not able to sustain their level of business activity - due to Alert Level restrictions. All that was (largely) fine and good, needed and welcomed.
Are the effects on those businesses really any different from those shut down by works enabled by the PWA? Works that have seen Ministers and Mayors resist 'compensation' because the law doesn't provide for it. Dragging their heels, fobbing off SME owners for months and months. The irony of it.
What have we heard said over and over? Unprecedented times call for unprecedented measures. There is no rule book. This hasn't happened before.
Those local Government officials and Ministers who have resisted providing meaningful assistance to businesses affected by CRL's works could have - should have - acknowledged that and taken steps to alleviate the pain.
The Mayor in whose region the current Waikato issue is playing out was reported as saying 'it's not a question of what is fair. Council must follow very clear legislative processes....and we have done that'. That Council has even dedicated a page on its website to trying to explain itself, again hiding behind legislation when the option of doing the right thing is staring them in the face.
Hide behind inadequate legislation all you like. If it is not 'fair', make it fair. Make it just. Allow everyone to walk away afterwards feeling everything was done that could have been done to arrive at a fair outcome.
In the case of CRL, they have cited several overseas projects as being comparable to the Auckland project, thereby forming comparable bases for compensation claims. The projects they have cited deserve no place in the CRL model, nor do they fit into the New Zealand or CRL specific legislation. The CRL model hides behind the PWA. They identified 'comparable' projects that suit their argument.
Experts and consultants engaging with private landowners on behalf of a public body are not going to be naturally singing off the same song sheet as the affected landowners. It is usually an adversarial setting. After all, who wants their property taken away from them?
Saying that the landowners had every opportunity to object to some PWA enabled works - but didn't - is not entirely fair. Being inexperienced in such matters is likely to leave private property owners in disadvantaged positions, unaware of their Rights and the detail of the process. In any event, that should not preclude new and fresh discussions between a public body and private property owners as the effects of the process become clearer to all.
Private landowners dealing with CRL have had a serious challenge in finding consultants and experts who can act for them anyway, as the major companies with the relevant expertise are contracted to CRL Limited and conflicted. Hardly a level playing field.
The purpose of this article is to highlight some of what is not right about the legislation as it stands, the processes followed, the public servant mantras being so distant from reality, and to remind us just how all of that can be very different.
That reminder has come in the form a pandemic that has shown us all that solutions to short term problems can be found, and quickly, and that public bodies can help solve problems, rather than being part of the problems themselves.
Playing fair, being honest, being accountable, and wanting to find a fair outcome for all. These are the qualities that are needed. Are our public servants able to embody those characteristics and stop hiding behind the PWA, the Local Government Act and anything else that suits their purpose? Are they capable of being led by good wholesome values rather than motives driven by political power building?
We keep hearing that the pandemic has taught us to appreciate what we have, to be kind to others, to help each other (in personal and business contexts) 'get through this'; that the pandemic has changed our perspectives, has somehow forced us to reset and change our ways for the better, for the greater good. Actions not words are the real evidence of whether that will happen, or will last.
None of this will immediately help those affected by the Waikato case I read about recently, nor the land and business owners affected in central Auckland, but those people should know they are not alone, and recent events have brought unwanted but fresh perspective to many of life's unpleasant and unexpected situations.
Let's hope such fresh perspectives can open the door to more fair outcomes and the evolving of legislation to deal appropriately with modern day issues.
In conclusion:
Do what is fair and right in unprecedented times, then adopt that approach as the norm.
If it's good enough for one unprecedented event, it is good enough for another.
Do not hide behind legislation just because it suits your argument, be that fiscal or ideological.
As has been proved, it is absolutely possible to open the public purse to assist with the fallout and consequences of unprecedented events - particularly those that are planned.
The pandemic has shown us that it is possible to realise and acknowledge when the law simply doesn't work, and to approach a situation with innovation and fresh thinking, aiming for a mutually acceptable outcome.
I for one believe that working towards a viable and mutually beneficial solution is far better - in many respects - than the hypocrisy of being a public body bully one minute, and the instigator of a free-for-all money scramble the next.
How about we all aim for more fresh approaches and good outcomes, and less of the building of obstacles?
Since the effects of the pandemic started to present themselves in the commercial property sector I have tried to be a voice of clarity in respect of doing what is necessary to come out of this unusual phase of our lives by applying reasonableness and fairness. Remember, the pandemic was unplanned and the effects on business are no one's fault.
In contrast, public works are planned events. Handling their fallout and consequences for affected parties with sensitivity and fairness should not be beyond those charged with the application of the legislation. Beyond that, lessons should be learned and deficient legislation altered to improve the processes and outcomes for its future use.
Note:
Much has been reported about the CRL project. It is complex. The ultimate land acquirer is Auckland Council. A snippet of reporting of some of the issues facing businesses with no claim to compensation can be found here.
Some reporting of the recent Waikato case can be found here.
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