The judicial review judgement (WSG vs QLDC and QAC) – 21 April 2021

The judgement of the High Court (Justice van Bohemen) is available for anyone to read in full. It is 66 pages long, detailed and complex in parts. If you wish to read it yourself, you can find it here:

If there is anything arising from the judgement which you are unclear about, please email us and we’ll endeavour to give you some clarity.

Below is a summary for anyone who decides not to read the judgement in full. We have used footnotes (in the document version at the end of this page) you wish to have references to the judgement.

The Wanaka Airport court decision explained (in less than 900 words)

WSG applied for “judicial review” of QLDC’s decisions to grant QAC a 100 year lease over Wanaka Airport, the lease being central to QAC’s ability to move ahead with airport development plans.  Judicial reviews allow a judge to look at the lawfulness or appropriateness of decisions of council. The hearing took place in September 2020, and Justice van Bohemen delivered his decision on 21 April 2021.

The judgement is a long read, as this case is detailed and complex in parts. The court found what WSG had said all along: that there was not proper consultation by QLDC about granting a 100 year lease of Wanaka Airport to QAC, with plans to turn it into a jet airport. The judge deemed the lease to have been unlawfully entered into, and set the lease aside. Other arguments run by WSG were either deemed “not necessary” given his finding, or were rejected by the judge.

For those interested in the detailed facts of the case, the first 32 pages of the judgement lay these out in great detail. This section includes a series of reports which QLDC and QAC commissioned, followed by a “consultation” which took place in 2016. In 2017, Council delegated authority to the Mayor Jim Boult, CEO Mike Theelen and Councillors Hill and Calum MacLeod to negotiate and execute a lease with QAC, which they did.  The judge noted that “the final version of the lease was not referred back to the Full Council for approval before execution.”

The judgement also details a “Strategic Alliance Agreement” between QAC and Auckland International Airport Ltd (AIAL), which holds 24.99% of QAC. Although a minority shareholder, this agreement outlines how AIAL can work very closely with QAC including “to deliver superior economic growth” to the airports and community. This agreement was secret until revealed at the judicial review hearing.

In his written judgement, Justice van Bohemen works through all the relevant laws. The Local Government Act is key to this case, and includes principles which state that “a local authority should conduct its business in an open, transparent and democratically accountable manner” and “should make itself aware of and should have regard to the views of all its communities […] and the likely impact of any decision on the social, economic, environmental and cultural well-being of present and future communities.”

Despite this being a judicial review of a lease negotiated by QLDC, not one of the councillors who had negotiated the lease, including the Mayor Jim Boult or Deputy Mayor Calum MacLeod gave evidence. Instead, CEO Mike Theelen and other council executives were left to provide evidence, which the judge found lacking. 

He wrote “In summary, the evidence of the witnesses for QLDC and QAC provides little information to explain how it was that the lease was agreed containing terms that are highly specific, far reaching and, in a number of respects unusual.” He added: “It strains credulity to accept that such terms would have been agreed in a commercial negotiation without a shared understanding on both sides of the negotiation about how Wanaka Airport was intended to be developed.”

Based on the evidence and the terms of the lease, he found that the lease was agreed by the QLDC negotiating team including Jim Boult, Mike Theelen and Calum MacLeod “in the expectation that Wanaka Airport was to be developed as a complementary airport to Queenstown Airport and would accommodate at least Code C jet aircraft.” He concluded that QLDC intended to “transfer substantial and effective control” over Wanaka Airport, giving QAC “the power to direct, regulate and command the use and future direction of the Airport.”

Looking closely at all of the evidence, including a brochure produced by QLDC in 2016 called the “statement of proposal”, the judge ruled: “It follows that QLDC did not consult the people of its district on the decision that it took to grant the lease to QAC,” noting that the lease was thereful unlawful.

One of Justice van Bohemen’s final paragraphs sums this up concisely:

“It is clear from the purpose and the provisions of the Local Government Act that major decisions taken by a local authority with respect to its strategic assets must be taken only after a process in which the community has been consulted openly and transparently in accordance with the LGA. QLDC has failed to meet that essential requirement. If the lease is not set aside, the public’s ability to have a say in the future uses of the Airport over the next 100 years plus would be limited.”

The High Court declared the lease unlawful, set it aside declaring it “of no legal effect” and awarded WSG costs. This means that QLDC now once again owns and controls Wanaka Airport fully and has to consult openly and transparently before QLDC implements any decision to turn it into a jet capable airport or enable QAC to do so. 

It is clear from the judgement that any future consultation on Wanaka Airport proposals would need to comply fully with the Local Government Act. Additionally, although the Court did not need to discuss this aspect, before QLDC makes such a decision it would have to be able to demonstrate that it was a rational one at the time it was made and properly took into account all relevant considerations.

[Ends]

Click below for a version of this summary with footnotes: