Hon Kate Wilkinson Minister of Conservation Parliament Buildings WELLINGTON 6160

11 August 2010

Dear Hon. Kate Wilkinson,

RE: CHRISTCHURCH HOSPITAL REDEVELOPMENT PROPOSAL AND ASSOCIATED HAGLEY PARK LAND TRANSFER

Thank you for your letter of 15 July 2010 to ICON (copied to the Christchurch Civic Trust), and for your letter of 21 June 2010 to the Christchurch Civic Trust (copied to ICON), in response to ICON‗s letter (endorsed by the Christchurch Civic Trust) of 14 June 2010, to you, as a local Member of Parliament, regarding the above.

We, ICON and the Christchurch Civic Trust, acknowledge receipt also of your letter of 28 July 2010 to ICON (copied to the Christchurch Civic Trust).

We are writing to you now as Minister of Conservation, with ministerial responsibility for the Christchurch City (Reserves) Empowering Act 1971 and the Reserves Act 1977.

Christchurch City Council Decision

The Mayor of Christchurch, Mr Bob Parker, in his response to ICON‘s letter of 14 June 2010 (endorsed by the Christchurch Civic Trust), advised, ―The decision for the Council to make at this stage of the Christchurch Hospital redevelopment is whether or not to consent to the transfer of land parcels and commence the parliamentary process that would enable this.‖ (Refer attached letter Office of the Mayor 2 July 2010)

On Friday, 23 July 2010, the Christchurch City Council approved ―the recommendation from the joint Council and Canterbury District Health Board Hearing Panel, that the transfer of a piece of Health Board land for a piece of Hagley Park, owned by the Council, should proceed, in order to enable the redevelopment of Christchurch Hospital.‖ (Refer attached CCC media release - ―Future of historic Nurses Chapel assured‖ 23 July 2010)

ICON and the Christchurch Civic Trust understand that, shortly, the Christchurch City Council will seek your approval, as Minister of Conservation, responsible for the Christchurch City (Reserves) Empowering Act 1971, for the proposed transfer of an area

Hon. Tariana Turia, Maori Party Co-Leader Hon. Clayton Cosgrove Dr Russel Norman, Green Party Co-Leader Hon. Lianne Dalziel Ms Metiria Turei MP, Green Party Co-Leader Hon. Ruth Dyson Hon. Jim Anderton, Progressive Party Leader Mr Aaron Gilmore MP Mark Solomon, Kaiwhakahaere [Chairman] of Mr Kennedy Graham MP Te Runanga o Ngai Tahu Mrs Nicky Wagner MP

CHRISTCHURCH HOSPITAL REDEVELOPMENT PROPOSAL AND ASSOCIATED HAGLEY PARK LAND TRANSFER

SUBMISSION TO HON. KATE WILKINSON MINISTER OF CONSERVATION FROM ICON (Inner City West Neighbourhood Assoc. Inc.) AND CHRISTCHURCH CIVIC TRUST INCORPORATED

11 AUGUST 2010 Executive Summary

[1] On 23 July 2010, following a public consultation process, in respect of the proposed Christchurch Hospital redevelopment, the Christchurch City Council approved the recommendation from the joint Council and Canterbury District Health Board Hearing Panel, that the transfer of a piece of Health Board land for a piece of Hagley Park, a metropolitan park, owned by the Council, should proceed, in order to enable the redevelopment of Christchurch Hospital.

[2] The shared concerns of ICON and the Christchurch Civic Trust (Civic Trust) include the following matters relevant to the Council‘s decision 23 July 2010:

Council‘s decision not to adopt the Special Consultative Procedure, in respect of the acknowledged “significant” decision, in terms of the Local Government Act 2002 (LGA) no evidence of Council’s consideration of referral of the CDHB proposal to an independent commissioner to conduct public hearings and provide recommendations to the Council, given the vesting of Hagley Park in CCC Council‘s formation of a joint hearing panel, comprising elected members of the Canterbury District Health Board (CDHB) and the Christchurch City Council (CCC), for a joint panel recommendation to the Council, in respect of the Council‘s consideration of a CDHB proposal to the CCC for an exchange of CCC Hagley Park land non-disclosure of relevant information in the CDHB/CCC public notice published in “The Press”, including the fact of the proposed exchange of CCC land located in Hagley Park and CDHB construction on CDHB land, vested in trust non- and/or inadequate disclosure of relevant information in the public consultation pamphlet and submission form included, including:

(a) fact of CDHB having made a proposal to the CCC for a Hagley Park land exchange (b) significance of relevant legislation protecting Hagley Park land and the requirement to amend legislation, the proposed land exchange not being permitted by statute (c) precedent created in amending the legislation protecting Hagley Park land, from the removal of land for public works, by means of land exchanges (d) destruction of 26 mature large woodland trees (all but 3 healthy) on the land being removed from Hagley Park (e) identified adverse environmental impact on adjacent Hagley Park land, hospital land and potentially the Botanic Gardens (f) inconsistency of the CDHB proposal with the statutory CCC Hagley Park Management Plan 2007 (g) CDHB proposal not having been subject to previous public consultation (h) CDHB‘s illegal use of Hagley Park land for car parking (i) fact of CDHB having made a proposal to the CCC, for CDHB construction on CDHB land, vested in trust (j) significance of relevant legislation, protecting CDHB land, vested in trust, and the requirement to amend legislation (k) non-inclusion of alternative siting options for the hospital development inconsistency of the CCC’s public consultation with “consultation” as defined by the Court of Appeal non-disclosure and/or inadequate disclosure of relevant information to the joint CDHB/CCC Hearing Panel non-disclosure and/or inadequate disclosure of relevant information to the Council for the Council‘s Hagley Park land exchange decision 23 July 2010 no evidence of the Council’s consideration of all the substantive arguments in the written and oral submissions of ICON and the Christchurch Civic Trust for the Council hearing CCC’s apparent non-compliance with relevant consultation principles and decision-making provisions of the Local Government Act 2002 no evidence of the Council’s consideration of the relevant matter of the identified adverse environmental impact on adjacent Hagley Park land, in terms of the statutory CCC Hagley Park Management Plan 2007 no evidence of the Council’s consideration of the relevant matter of the significance of Section 5 Hagley Park of the Christchurch City (Reserves) Empowering Act 1971, and, in particular, Section 5(3), not permitting Hagley Park land exchanges permitted by the Reserves Act 1977 no evidence of the Council’s consideration of the relevant matter of Parliament’s intentions, in respect of Section 5 Hagley Park of the Christchurch City (Reserves) Empowering Act 1971 no evidence of the Council’s consideration of the relevant matter of the creation of a precedent, regarding public works on land removed from Hagley Park for that purpose by a land exchange, in terms of Section 5 Hagley Park and Section 5(3) of the Christchurch City (Reserves) Empowering Act 1971

[3] ICON and Christchurch Civic Trust concerns also, in respect of a Council decision, required by the Christchurch Hospital Act 1887, to approve the Canterbury District Health Board‘s proposal to erect buildings and constructions on CDHB land, currently vested in trust, for prescribed purposes, including: The Council‘s formation of a joint hearing panel, comprising elected members of the Canterbury District Health Board and the Christchurch City Council, for a joint panel recommendation to the Council, in respect of the Council‘s consideration of a CDHB proposal to the CCC, not permitted by the relevant CDHB statute, unless approved by the CCC Non-disclosure and/or inadequate disclosure of relevant information in the public notice, public consultation pamphlet

Executive Summary Recommendation:

[4] ICON and the Christchurch Civic Trust respectfully seek your very careful consideration of the critical matters raised in this submission and request that you decline approval of the Christchurch City Council’s application for ministerial approval for the transfer of a piece of Canterbury District Health Board land for a piece of Hagley Park, owned by the Christchurch City Council.

[5] Mr Alan Bywater’s Response to Hon. Kate Wilkinson 5 July 2010

Firstly, we are responding paragraph by paragraph, to the issues presented by Mr A. Bywater, CCC Strong Communities Programme Manager, in his letter to you of 5 July 2010. (Refer attached letter)

[6] In Paragraph 2: Mr Bywater states that “the Canterbury DHB (CDHB) and the Christchurch City Council (CCC) resolved to enter a joint consultation to consider the proposed land exchange” and other matters. He omits the fact that the CCC had earlier received a proposal from the CDHB to exchange Hagley Park land for CDHB land, to facilitate the redevelopment of Christchurch hospital.

[7] Furthermore, Mr Bywater omits the fact that on 10 December 2009, the Council resolved not to adopt the Special Consultative Procedure for the public consultation. This was despite the fact that the Council had already acknowledged that the land transfer decision it was required to make was “significant‖, in terms of the CCC Policy on Significance. [8] In Paragraph 3: Mr Bywater states that ―a joint CDHB/CCC hearing panel was formed.” The panel comprised five Christchurch City councillors and five elected CDHB members, who were to consider written and oral submissions from the public, and make a recommendation to the Council for its decision regarding the CDHB proposal, not withstanding the fact, that the CDHB had made the proposal to the CCC for approval. ICON and the Civic Trust are concerned that the formation of a joint panel with representatives of the applicant, the CDHB, was approved by the Council, for the purpose of making a recommendation to the Council, regarding the proposed land exchange sought by the CDHB.

[9] Furthermore, given the facts that Hagley Park is vested in the CCC and that the CCC had received a proposal from the CDHB for approval of the removal of land from Hagley Park, by means of a land exchange, ICON and the Civic Trust believe that the Council should have considered referring the matter to an independent commissioner, for the purpose of conducting public hearings and providing recommendations to the Council for consideration. However, ICON and the Civic Trust can find no evidence of such consideration by the Council.

[10] In Paragraph 6, Mr Bywater refers to the need for amendment of the Christchurch City (Reserves) Empowering Act 1971 (CCREA) (Refer attached), to legalise the land transfer. However, he provides no explanation to you and nowhere in the public consultation pamphlet, ―Christchurch Hospital Redevelopment Consultation‖, was this fact disclosed. (Refer attached – CCC/CDHB public consultation pamphlet and submission form - ―Christchurch Hospital Redevelopment Consultation‖) ―Mr. Bywater ignores Section 5 Hagley Park of the CCREA, which protects Hagley Park from public works and land exchanges, permitted under the Reserves Act 1977. The requirement for amendment of legislation to effect the proposed Hagley park land exchange was not disclosed in the public consultation pamphlet.

[11] ICON and the Civic Trust note that the amendment required would be no mere formality, involving legislative revision of boundaries, in respect of a lawful land exchange. Rather, Parliament would be asked for the first time, since the commencement of the 1971 Act, to consider a precedent—a proposal for an activity, namely the proposed Hagley Park land exchange, which is contrary to a provision of and the intent of Section 5 Hagley Park of that Act. Since the 1974 Amendment of the CCREA, Hagley Park land has enjoyed statutory protection from the removal of land for “any public work whatsoever”, whether effected by the Public Works Act or land exchanges.

[12] ICON and the Civic Trust draw your attention to the fact that no alternative siting options for the hospital redevelopment were presented in the public consultation pamphlet. Only the Hagley Park location was proposed, notwithstanding the following:

(a) “If this does not occur, the site development will not be possible and the District Health Board will need to pursue the option of a “greenfields development”. (Refer attached - ―CHRISTCHURCH HOSPITAL LAND EXCHANGE PROPOSAL‖ Report (Clause 57), Council Agenda 26 November 2009) (b) “Unless the existing site was redeveloped or another alternative was found, it would be difficult to continue providing many core health services in Canterbury in the long term.” (Refer attached - CDHB media release - ―Consultation on redevelopment of Christchurch Hospital begins‖ 31 March 2010, published in ―nzDoctor.co.nz‖. (c) “Unless the existing site is redeveloped or another alternative is found we are facing a real sustainability issue with many of our core health services in Canterbury…The option that is proposed is in two stages…and is an exciting development that offers the best flow for services and the least disruption to patients, visitors and staff during the construction period.” (Refer public consultation pamphlet - ―Christchurch Hospital Redevelopment Consultation‖) (d) “It should be noted that if the Council decides not to proceed with the land transfer the proposal for redeveloping the Christchurch Hospital will not be able to be realized. The need to address the issues around providing quality health care facilities for the future will remain. The Council can anticipate further proposals being developed by the CDHB to address this need. Whilst neither the Council nor CDHB know what the nature of these proposals will be, it is likely that there will be significant planning and other implications for the Council which may be broadly equivalent to the implications of the current proposal.” (Refer attached – ―IMPLICATIONS FOR COUNCIL OF THE CHRISTHURCH HOSPITAL REDEVELOPMENT‘ Report (Clause 21), Council Agenda 23 July 2010)

[13] By contrast, when the Northland District Health Board undertook public consultation in 2008, in respect of its proposed major redevelopment of Whangarei Hospital, the Site Master Plan included “six potential options for the future, ranging from “do nothing” to building a new hospital on a “green fields” site”. The Board had endorsed a preferred option. (Refer attached - Whangarei Hospital media release–―Public opinion sought on plans for Whangarei Hospital‖ 11 July 2008)

[14] In Paragraph 7, Mr Bywater states that the CCC recognises the significance of amending the legislation. However, he omits to disclose the fact that an amendment to the CCREA, such as is intended by both the CCC and the CDHB, to allow land to be removed from Hagley Park, for the purpose of a public work, by means of a land exchange, would create a precedent in terms of this legislation and the current statutorily protected status of Hagley Park. As stated above for paragraph 6, no such proposal has been made to Parliament since the commencement of the CCREA. Furthermore, such an amendment would create a precedent also for public work proposals other than hospital development, on land removed from Hagley Park.

[15] Mr Bywater states correctly, that both “ICON and the Christchurch City (sic) Trust are concerned that the land swap is contrary to the intent of the Christchurch City (Reserves) Empowering Act”. ICON and the Civic Trust emphasise that this proposal for a public work in Hagley Park, requiring the exchange of reserve land, is, indeed, contrary to the intent of Section 5(3) Hagley Park of the CCREA: “Nothing in section 17 or section 18 of the Reserves and Domains Act 1953 shall apply in respect of Hagley Park.” This fact was not disclosed in the public consultation pamphlet, or in the ―CHRISTCHURCH HOSPITAL REDEVELOPMENT AND LAND SWAP Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel‖ Agenda Joint Hearings Monday 31 May-Tuesday 1 June 2010, and was not included in the ―CHRISTCHURCH HOSPITAL REDEVELOPMENT PROPOSAL AND LAND TRANSFER JOINT CHRISTCHURCH CITY COUNCIL/CANTERBURY DISTRICT HEALTH BOARD HEARINGS PANEL REPORT‖ Recommendations for the Council meeting on 23 July 2010.

[16] ICON and the Civic Trust contend that the significance of Section 5 Hagley Park of the CCREA, in protecting Hagley Park land from the removal of land for public works, is a relevant consideration, in respect of the CDHB‘s hospital proposal and the Council‘s decision to consent to a Hagley Park land exchange. However, the significance of Hagley Park‘s special statutory protection was not disclosed in the public consultation pamphlet. Thus, the public was not alerted to the significance of seeking any amendment to Section 5 Hagley Park of the CCREA, the historical basis for this legislation and the precedent being created.

[17] It is worth noting here, in respect of the historical legal protection of Hagley Park, that an 1855 Canterbury Provincial Government Reserves Ordinance reserved Hagley Park for ever as a public park, open for the recreation and enjoyment of the public. (Refer attached – Canterbury Association‘s Reserves Ordinance Session V., No.2) (This enactment, with other later Acts, was repealed in the CCREA but Section 13 of this Act provided that “the repeal…shall not affect any interest, right or benefit created or conferred under or by virtue of any such enactment.”) ICON and the Civic Trust contend that, in the interests of fairness, the land exchange proposal needs to be assessed by the public in the context of the history and legislation regarding Hagley Park and the hospital‘s expansion to this day on land alienated from Hagley Park for hospital purposes, notwithstanding the 1855 Reserves Ordinance and Section 5 Hagley Park of the CCREA.

[18] Consequently, ICON and the Civic Trust take issue with the unsubstantiated assertion in a recent CCC media release that “…the land swap is a one-off transfer and there is no precedent established for any future expansion into Hagley Park.” (Refer attached – ―Hospital land swap should proceed - panel‖ ―The Star‖ 21 July 2010, P A2) While the media release claims further that there is no need envisaged to expand the hospital‘s footprint, nevertheless it is clear, that the area of land in Hagley Park, sought for transfer to the CDHB, would be strategically valuable in positioning the hospital for further long-term expansion west along Riccarton Avenue on land, which could be transferred also from Hagley Park in return for CDHB land to the CCC, given the legal precedent created by this initial proposal, if approved. The location of the main public vehicle entry at the west end of the proposed development does not preclude further expansion of the hospital beyond its current western boundary. Already in recent years, the CDHB‘s interest in the ex-caretaker‘s property, located in Hagley Park at 6 Riccarton Avenue, immediately to the west of the CDHB (former Nurses‘ Hostel) land, has been the subject of public consultation but not supported (Project 23 Hagley Park/Botanic Gardens Master Plan) Citizens have no reason to believe that the hospital will not ultimately seek further alienation of land from Hagley Park, given the history of continuous expansion of its boundaries since 1859 – generally without payment and on at least two occasions without formal approval:

(a) 1924 encroachment of Children‘s Ward onto 5 acres 2 roods 32 perches of Hagley Park land

(b) carparking on Hagley Park land, contrary to the CCREA (Refer attached – ―Memories Saved‖ P 8, published in ―New Zealand Historic Places‖, NZHPT, March 1995)

[19] ICON and the Civic Trust note here, that the proposed hospital redevelopment incorporates development of the former Nurses‘ Hostel land, whose statutory 1927 Hagley Park trust was removed in recent years, without public consultation, benefitting the hospital long-term. This has facilitated part of the proposed hospital development, including road access to the Hagley Park land beyond currently being sought from the CCC.

[20] Although the CDHB owns no further land immediately adjoining Hagley Park, ICON and the Civic Trust are concerned that the anticipated precedent would allow further land to be removed from Hagley Park for hospital development, in exchange for the transfer of CDHB land elsewhere in the city to the CCC for a Council reserve, at any time in the future.

[21] Mr Bywater claims, “…the proposed land transfers can be considered to meet the original intent of the acts by preserving parkland (the exchange does not result in any reduction in the size of Hagley Park) while ensuring the sustainability of Christchurch Hospital…” Once again, Mr Bywater ignores Section 5 Hagley Park of the CCREA. ICON and the Civic Trust note, further, that no land exchanges and amendments of legislation are required for “preserving parkland”, given the protective provisions of the Christchurch Hospital Act 1887, the CCREA and the Canterbury Association‘s Reserves Ordinance 1855.

Hansard

[22] In respect of recognizing the significance of amending the CCREA, ICON and the Christchurch Civic Trust believe it is worth recalling the earlier intentions of Christchurch citizens, the Christchurch City Council and Parliament.

[23] ―New Zealand Parliamentary Debates‖ record that, in moving the Second Reading of the Christchurch City (Reserves) Empowering Amendment Bill 1974, which had been promoted by the Christchurch City Council, Mr Bruce Barclay MP said, “…In other words, Hagley Park is sacrosanct except in the case of legislation passed in this House. It is retained for the people of Christchurch as a sports and recreational area. The local authorities and the Crown are bound not only in respect of roads, bridges and motorways which were objected to in the 1971 Act, but they are bound in respect of any public work whatsoever. For example, if the hospital board wanted to build a hospital in the park area, this could not be done without an Act of Parliament…As I have already said, Hagley Park is one of the most beautiful parks in New Zealand, and we want it held inviolate for the people of Christchurch and for the people of other parts of New Zealand who wish to come to Christchurch and enjoy the beauties of that park…The citizens said what they wanted, and the present Christchurch City Council is backing up that decision by promoting this legislation…” (Emphasis added)

[24] Squadron Leader Drayton (St Albans) said, “…This proposal perpetuates the trusts imposed on Hagley Park and other reserves by the original deed of conveyance, a subsequent provincial ordinance, and special Acts of Parliament since…”

[25] Mr Schultz (Coromandel) said, “…It is now provided that Hagley Park remains intact, as it should be. These reserves were set apart many years ago, and once they are cut into we can no longer go back…”

[26] Mr O‘Brien (Island Bay) said, “…The city council and the people of Christchurch are to be praised for saving from the intrusion of the concrete attackers an area that in 1877 (sic) was vested in them in perpetuity for parklands and that gives Christchurch its unique character…”

[27] Right Hon. N.E. Kirk (Prime Minister) said, “…The other important issue…although the status quo is preserved by protecting Hagley Park, is that in the beginning the Provincial Council set aside this land for the recreation and enjoyment of the citizens of Christchurch for all time. The park was a trust bequeathed by the Provincial Council and embodied in an ordinance which, with considerable foresight, intended that this green lung should be preserved for all time for the benefit and enjoyment of the people of Christchurch…I am of the opinion that over the years Parliament has been too ready to override trusts in the name of convenience and to change entirely the purposes for which land has been set aside…” Not only did the Prime Minister want to see the Bill passed but also as the next step, a measure entrenching the provisions of the 1877 (sic) Canterbury Provincial Council that Hagley Park should be preserved for ever for the enjoyment and pleasure of the people of Christchurch. (ICON and the Christchurch Civic Trust note that this has yet to proceed. However, another proposal of the former Prime Minister, in respect of protecting Hagley Park, ie. the formation of a Guardians group, was approved by the Council for the Hagley Park/Botanic Gardens Master Plan 2007 but has yet to be implemented.)

[28] During the earlier debate for the Introduction of the Bill, Right Hon. N.E. Kirk (Prime Minister), spoke of “precedent”. “…I remain convinced that although Christchurch is fairly richly endowed with reserve land it is not so richly endowed that it can afford to provide the precedent for a whittling away of those reserves…I know how important it is to a growing city like Christchurch to preserve such areas…The argument is advanced that this is only a little bit of land, and less than before, but the most difficult step to take in any case like this is the first one. When the precedent has been set, it is not quite so hard.” (20 July 1973) (Emphasis added)

[29] In Paragraph 8, Mr Bywater states, “…the proposal secures the long-term use of a more contiguous and usable park area, compared to the existing use and configuration.” This argument, in support of the land exchange, was not included in the public consultation pamphlet. In fact, the public has long had the ability to enjoy the use of this parcel of hospital parkland, sharing this area with hospital patients. It is worth noting that this land was originally part of Hagley Park but transferred, in contravention of the 1855 Reserves Ordinance, to the Hospital Board, explicitly, “…in trust for the purposes of a kitchen-garden and of pleasure-gardens and recreation-grounds respectively for the use of the inmates of the aforesaid hospital, and for no other purposes;…” Furthermore, the land has statutory protection from constructions of any kind, unless approved by the CCC. (Refer attached – Christchurch Hospital Act 1887)

[30] (For further concerns of ICON and the Civic Trust regarding hospital construction on CDHB land, vested in trust, refer the paragraph below - CDHB Construction on CDHB Land, Vested in Trust.)

[31] Mr Bywater omits consideration of the adverse environmental impact on and loss of amenity of the adjacent Hagley Park land, hospital land and potentially the Botanic Gardens, resulting from the removal of 26 mature large trees, and the domination of hospital buildings, with proposed heights exceeding CCC City Plan height rules, identified in Council reports and correspondence with Mr David Thornley. (Refer Paragraph 10 below)

[32] In Paragraph 9, Mr Bywater refers to the Hagley Park/Botanic Gardens Management Plan 2007. ICON and the Civic Trust draw your attention to the fact that this plan is not a statutory plan, unlike the CCC Hagley Park Management Plan 2007. It is not subject to Section 41 of the Reserves Act 1977, the statutory management plan process for Hagley Park. The proposed land exchange for the hospital redevelopment was not anticipated in either the former plan or the statutory plan. Furthermore, it was not anticipated in the CCC LTCCP 2009-2019 or the CCC Annual Plan. It has not been the subject of previous public consultation. No hospital expansion into land required to be removed from Hagley Park was anticipated in any of the CCC‘s statutory documents.

[33] Mr Bywater refers to “the Council‟s wish to reclaim the part of Hagley Park being used for hospital car parking…” ICON and the Civic Trust note that the car park referred to is included in the area of Hagley Park land, the subject of the land exchange. Not disclosed in the public consultation pamphlet, nor to the hearing panel or to the Council, is the fact that appropriating any part of Hagley Park land for parking places for vehicles (unless consented by the Minister), has been prohibited, since the commencement of the CCREA. Neither the CCC nor the CDHB has been able to provide proof of any formal approval from the Minister.

[34] ICON and the Civic Trust are concerned that the public consultation pamphlet creates the misleading impression that not only has formal approval been given previously to the CDHB for use of that Hagley Park land as a car park but that all of the Council land proposed to be transferred is used for hospital car parking - “The Council land required for the new hospital is already used for hospital car parking (see aerial photo above…).” In fact, the car park occupies only 1550 sq m, while the total area of Hagley Park sought by the CDHB is 6550 sq m.

[35] Mr Bywater states that the proposed land swap would give the Council “the ability to control any potential development” on the former CDHB parkland. However, ICON and the Civic Trust note that the CDHB is forbidden by the Christchurch Hospital Act 1887 to “erect, or permit to be erected, any buildings or constructions of any kind thereon, except such as may be approved by the Domains Board (now the CCC) having control of the lands in Hagley Park”.

[36] Mr Bywater states as a benefit of the land exchange, “Potential to improve integration of hospital with surrounding area”. However, he omits all reference to the loss of amenity referred to in the ―Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel‖ and the ―Hearings Panel Report‖ to the Council.

[37] In Paragraph 10, Mr Bywater refers to “the adverse impact from the loss of trees” and comments, that this is a factor, which “the Council will weigh up in deciding on its position following the consultation process.” ICON and the Civic Trust are extremely concerned regarding the inadequate disclosure of this relevant matter to the general public in the public consultation pamphlet, where it is stated, “Some trees will need to be removed to accommodate the new hospital buildings.” In respect of trees, this is the only statement contained in the public consultation pamphlet, regarding adverse environmental effects on Hagley Park and the Botanic Gardens. ICON and the Civic Trust contend that this statement is misleading. In response to a letter to the CCC from Mr David Thornley, Deputy Chair of ICON, Mr Bywater has forwarded information he received from Mr Jeremy Hawker, manager at the Botanic Gardens, stating, “It is likely that all the trees on this piece of land will be lost as the new hospital building construction takes place.

[38] “Other trees in the areas around the new buildings may be affected as any alteration to the built environment has some impact on landscape plantings. In this case those impacts are likely to be both positive and/or negative largely due to altered localised microclimate changes.

[39] “It is possible that area adjacent to the development will have increased pedestrian traffic and this could have possible potential adverse effects on trees within the wider area including both the woodland, hospital land and potentially the Botanic Gardens.

[40] “At a very operational level, it seems likely that the proximity of the hospital buildings and associated noise may mean that the Daffodil Lawn area is no longer a suitable venue for the annual Summer Theatre performances.” (Refer attached – Alan Bywater‘s email to David Thornley 15 April 2010)

[41] In the ―CHRISTCHURCH HOSPITAL REDEVELOPMENT AND LAND SWAP Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel‖ P 13 (Refer attached), reference is made to an independent arborist‘s report, regarding the trees located on the land to be removed from Hagley Park: “The land and trees in the area are of historical significance as the Acclimatisation Society used the area from 1864 until 1929 for trials of exotic species prior to their distribution.” The report advises that remnant trees remain.

North Hagley Park Land [42] “There are twenty six trees within the North Hagley Park section” (to be transferred to the CDHB). “Twenty four of these were assessed as being in average condition, and two trees were in poor condition. It is recommended that one tree needs to be removed...

[43] “The mature trees that are within the area of North Hagley Park that is subject to the proposed land exchange currently provide shelter to other trees within the Daffodil Woodland, the Hospital and the Botanic Gardens. Any changes to the environment within North Hagley Park such as the removal of existing trees and hospital building development may result in a decline in the health and condition of remaining trees within the Daffodil Woodland, the hospital and possibly the Botanic Gardens.

[44] “The immediate and long-term potential adverse effects on the remaining trees within North Hagley Park cannot be evaluated without assessing the final designs for the site development.”(P 13)

[45] Neither the public consultation pamphlet nor the reports to the joint Hearing Panel or to the full Council refer to the CCC‘s statutory duties in managing Hagley Park, in terms of the Hagley Park Management Plan 2007 and the Reserves Act 1977, and the inconsistency of the Council‘s approving the proposed land exchange, with its adverse impact on adjacent Hagley Park land, for the purpose of a hospital redevelopment.

[46] Thus, given that, in respect of the public consultation pamphlet wording, “some” has the meaning “not all”, and the report of Mr Jeremy Hawker, CCC manager at the Botanic Gardens that, “It is likely that all the trees on this piece of land will be lost as the new hospital building construction takes place”, the statement in the public consultation pamphlet, “Some trees will need to be removed to accommodate the new hospital buildings” is totally misleading and without substance.

[47] Furthermore, in respect of any adverse environmental impact of building construction and the proximity of new hospital buildings exceeding City Plan height limits, the public consultation pamphlet advised only, “The buildings would have little impact on nearby neighbours…”, at variance with the opinions of both an independent arborist and a CCC manager.

[48] Paragraph 13: Finally, in his reply to you, Mr Bywater states, “The redevelopment of Christchurch Hospital is a significant project both in terms of the provision of high quality health care and the physical layout of the site and its surrounding area.” However, he omits reference to the significance of the project in terms of the provisions protecting Hagley Park in Section 5 Hagley Park of the CCREA and the statutory prohibition on land exchanges.

[49] Secondly, we consider the “CHRISTCHURCH HOSPITAL REDEVELOPMENT AND LAND SWAP Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel” Agenda Joint Hearings Monday 31 May – Tuesday 1 June 2010.

[50] The stated purpose of this report was “… to fully brief both City Councillors and Canterbury DHB board members serving on the hearings panel for the Christchurch Hospital Redevelopment consultation...The report…identifies the key enabling requirements for the proposed redevelopment of Christchurch Hospital… [51] “A description of the consultation process and a short summary of the main comments raised by submitters are included as an appendix to the report.” (P1)

[52] “Accordingly, the public consultation was framed…so the community could consider the proposal appropriately.” (P6)

[53] “These items were identified in the Consultation documentation…

[54] Trees – “As part of the consultation documentation…it was emphasized that the two areas being considered for a land swap both contain trees.” (P7)

[55] ICON and Civic Trust Comment: The report provided relevant information for the joint hearing panel, which was not disclosed in either the public notice or the public consultation pamphlet. eg. Trees were identified as a “key enabling requirement” and details from an independent arborist‘s report were provided for the Panel, such as the fact of 26 mature trees on the land to be removed from Hagley Park and the adverse environmental impact on adjacent Hagley Park land and the Botanic Gardens. However, the public consultation pamphlet limited environmental information to the removal of “some trees”. While “consultation meetings” may “have been open that the trees currently within the CCC land proposed to be transferred to the Canterbury DHB, based on the current concept Redevelopment, would almost certainly need to be removed” (P7), such information was not disclosed in the public consultation pamphlet. (Refer Paragraph 10 regarding Mr Bywater‘s letter above for further details)

[56] The Introductory Report to the Joint Hearing Panel is entitled ―CHRISTCHURCH HOSPITAL REDEVELOPMENT AND LAND SWAP‖. While it includes a copy of the public consultation pamphlet, no copy of the public notice published in ―The Press‖ is included. (Refer attached – CCC/CDHB public notice - ―Christchurch Hospital Redevelopment Consultation‖ ―The Press‖) Thus, not disclosed to the Panel was the fact that the public notice had contained no CCC notification of a proposed exchange of CCC land located in Hagley Park. Consequently, the fact that “the two areas being considered for a land swap both contain trees” was not evident from the public notice, a CCC consultation document.

[57] In the ―Analysis of Comments‖ (P25-26), the Report states, “The following are the themes extracted from any additional comments.”

[58] ICON and Civic Trust Comment: However, the Report omits evidence of all the substantive arguments in the written submissions of both ICON and the Christchurch Civic Trust.

[59] “The land swap, if approved, gives effect to the intent of the Hagley Park/Botanic Gardens Master Plan.” (P5)

[60] ICON and Civic Trust Comment: The non-statutory Master Plan contains no evidence of consideration of Section 5(3) CCREA and the fact that any proposed land exchange would be contrary to that provision. (Refer Paragraph 9 regarding Mr Bywater‘s letter above for further details)

[61] Under the heading ―Consultation Process carried out”, the Report advises, “The purpose of the joint Canterbury DHB and Christchurch City Council consultation process was to present the Christchurch Hospital Redevelopment Plan to the community, and seek initial views and issues around key aspects of the project including the land swap proposal.” (P22)

[62] ICON and Civic Trust Comment: However, the CCC public notice ―Christchurch Hospital Redevelopment Consultation‖ invited submissions with views on the proposed redevelopment of Christchurch Hospital only.

[63] Regarding the matter of the long-term protection of the Nurses‘ Memorial Chapel, the Report advises, that this is “not directly related” to the hospital redevelopment and the necessity to change the local acts of Parliament (P5). This confirms the statement made in the CHRISTCHURCH HOSPITAL LAND EXCHANGE PROPOSAL Report Council Agenda 29 November 2009: “Whilst the Nurses Memorial Chapel is not part of the proposal for the land exchange by the CDHB, the land exchange process provides an opportunity to progressing Council ownership of it.” (Clause 76) However, the Introductory Report advises subsequently, “Any transfer of the Chapel‟s ownership will be dependent on the land swap and hospital redevelopment proceeding.” (P9)

[64] Relevant information, in respect of the Council‘s Hagley Park land exchange decision, not provided to the joint Hearing Panel in the Introductory Report and subsequently not to the Council in the ―Hearings Panel Report‖, includes the following: relevant Section (Section 5 Hagley Park) of the Christchurch City (Reserves) Empowering Act 1971, not permitting Hagley Park land exchanges significance of amending the Christchurch City (Reserves) Empowering Act 1971 and the precedent created in terms of that Act details of the adverse environmental impact on adjacent Hagley Park land, hospital land and potentially the Botanic Gardens, as provided by Mr Jeremy Hawker, CCC manager at the Botanic Gardens (Refer Paragraph 10 regarding Mr Bywater‘s letter above for further details) inconsistency of the Council‘s Hagley Park land exchange decision with the statutory Hagley Park Management Plan 2007 and the implications for the Council, in terms of the Local Government Act 2002 CDHB‘s illegal use of Hagley Park land for car parking mandatory LGA obligations for the Council, given that the land-exchange decision was a “significant” decision, in terms of the LGA

[65] Thirdly, we consider the “CHRISTCHURCH HOSPITAL REDEVELOPMENT PROPOSAL AND LAND TRANSFER JOINT CHRISTCHURCH CITY COUNCIL/CANTERBURY DISTRICT HEALTH BOARD HEARINGS PANEL REPORT” for Council Meeting 23 July 2010

[66] The stated purpose of this report included summarizing the consultation process and the submissions received. (P1)

“Trees” [67] The Report advises that the diagram in the Consultation Brochure (Appendix 1) was used to emphasise “that the trees currently within the Christchurch City Council land proposed to be transferred to the Canterbury DHB, based on the current concept Redevelopment, would almost certainly need to be removed.” (P 38)

[68] ICON and Civic Trust Comment: While the Appendix 1 diagram was included in the public consultation pamphlet, the accompanying text stated only, “…some trees will need to be removed to accommodate the new hospital buildings…”

“ANALYSIS OF WRITTEN SUBMISSION COMMENTS” (P39) [69] ICON and Civic Trust Comment: Like the earlier Introductory Report, the Hearings Panel Report omits evidence of all the substantive arguments in the written submissions of both ICON and the Christchurch Civic Trust. Similarly, the ―VERBAL SUBMISSIONS‖ section of the Report omits reference to all the substantive arguments in the oral submissions of both ICON and the Christchurch Civic Trust. Thus, ICON and the Civic Trust contend, that a fair and accurate account of their submissions was not provided to the Council before the Council decision 23 July 2010.

[70] “The Panel is satisfied that the Canterbury DHB has carried out a thorough planning process leading to the development of the Christchurch Hospital Redevelopment concept and that the main other options of splitting acute and critical care across multiple sites are neither practical nor desirable.” (P42)

[71] ICON and Civic Trust Comment: No alternative siting options were included in the public consultation pamphlet (Refer Paragraph 6 regarding Mr Bywater‘s letter above for further details)

“LAND TRANSFER/HAGLEY PARK (P42) Panel’s Response [72] “The Panel was very aware that Hagley Park is viewed by the community as a treasure, and that any potential encroachment into the park is very significant. For a proposal of this sort to succeed, especially considering the need to amend at least two Acts of Parliament indicates the need for its case to be compelling. (sic)

[73] “The Panel considers the Canterbury DHB has demonstrated in its planning that future long-term redevelopments of Christchurch Hospital can be accommodated within the revised boundaries, without any need for a further expansion. Consequently, this is a one-off land transfer and there is no precedent established or expectation of future expansion into Hagley Park.”

[74] ICON and Civic Trust Comment: “For a proposal of this sort to succeed”, not only must the case be “compelling”, but due process must be followed by the Council, in respect of compliance with both statutory public consultation principles and the statutory decision-making process, not to mention “consultation” by the CCC, as defined by the Court of Appeal. As stated at the beginning of this letter, ICON and the Civic Trust are expressing their very serious concerns to you, in this regard.

[75] While the Report records the Panel‘s awareness that “any potential encroachment into the park is very significant”, it contains no evidence of the Panel‘s consideration of the relevant matter of a CDHB proposal, in respect of public works in Hagley Park, a matter debated by Parliament and subsequently not permitted by statute. Thirty-six years ago, in 1974, Parliament anticipated the expansion of the hospital and the taking of more Hagley Park land for hospital buildings. (Refer Paragraph 7 regarding Mr Bywater‘s letter above for further details) However, the Report contains no evidence of the Panel‘s awareness of the relevant provision of the relevant statute ie. Section 5(3) of the CCREA, not permitting Hagley Park land exchanges permitted by the Reserves Act 1977.

[76] ICON and the Civic Trust note that the ―IMPLICATIONS FOR COUNCIL OF THE CHRISTCHURCH HOSPITAL REDEVELOPMENT‖ Report on the Council Agenda 23 July 2010 advised that there were no legal considerations/implications of the issue under consideration.

[77] On the one hand, the Panel considers that the CDHB “has demonstrated in its planning that future long-term redevelopments of Christchurch Hospital can be accommodated within the revised boundaries without any need for a further expansion.” On the other hand, “the Panel‟s presentations and reports included material…relating to the concept of a 50 year plan for the Christchurch site should the current proposal proceed”. (P43) In reality, the current Hospital Redevelopment Proposal within the proposed revised boundaries is a 50 year concept only. The critical relevant matter requiring consideration in this case, as stated in respect of Mr Bywater‘s Paragraph 7 above, is the precedent created now, in terms of the CCREA, to permit the current CDHB Hospital Redevelopment Proposal, which would allow not only hospital expansion on land removed from Hagley Park, by means of a land exchange, at any time in the future, whether expected now or not, but also public works of any kind, contrary to the original intent of Parliament and the Christchurch City Council. ICON and the Civic Trust find no evidence of the Council having taken this critical relevant matter into account.

[78] ICON and the Civic Trust maintain that it cannot be claimed that “this is a one- off land transfer”, in terms of future long-term redevelopments of Christchurch Hospital or indeed, any public works, requiring land to be removed from Hagley Park. Furthermore, there can be no escaping the fact that an amendment to the CCREA, for the first time since the commencement of that Act, removing the „protected status‟ of a piece of Hagley Park land, and allowing it to be removed from Hagley Park for a public work, by means of a land exchange, where Section 5(3) of this Act does not permit land exchanges, would create a precedent in terms of this Act.

“REMOVAL OF TREES (P45) Staff Advice [79] “North Hagley Park Land (Area A) “...There are no trees protected by the District Plan in this area… “It is anticipated that as part of the hospital redevelopment all the trees currently located on the Council‟s land subject to the land transfer will be lost…”

[80] ICON and Civic Trust Comment: The Report omits reference to the fact of the protection afforded all the trees in Hagley Park under the Reserves Act 1977 and the statutory Hagley Park Management Plan 2007. This report of the Hearings Panel to the Council repeats the relevant matter of the likely destruction of all the trees on the land being removed from Hagley Park for the hospital redevelopment, disclosed previously in the ―Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board‖ but not in the public consultation pamphlet. (Refer Paragraph 10 regarding Mr Bywater‘s letter above for further details).

“OTHER SITES/ALTERNATE PROPOSALS” (P 51) [81] ICON and Civic Trust Comment: The Hearings Panel Report to the Council omits the fact that no alternative siting options had been provided in the public consultation pamphlet. (Refer Paragraph 6 regarding Mr Bywater‘s letter above for further details)

―ALIGNMENT WITH CHRISTCHURCH CITY COUNCIL STRATEGIES AND PLANS” (P 52) [82] “The Christchurch Hospital redevelopment has the potential to help achieve a number of the Council‟s strategies and plans...”

[83] ICON and Civic Trust Comment: The statutory CCC Hagley Park Management Plan 2007 is omitted from the list provided.

“THE PROPOSED LOCAL BILL” (P 53) [84] “To enable the transfers of land between the Council and Canterbury DHB both the Christchurch City (Reserves) Empowering Act 1971 and the Christchurch Hospital Act 1887 will need amending.”

[85] ICON and Civic Trust Comment: As stated elsewhere in this submission, this fact was not disclosed in the public notice or in the public consultation pamphlet.

[86] Referring to the land “currently owned by the Christchurch City Council” and “covered by the Christchurch City (Reserves) Empowering Act 1971”, the Report states, “In order for it to be transferred to the Canterbury DHB for the purposes of building the hospital redevelopment the „protected‟ status of this land afforded by this Act will need to be removed (and ownership transferred).” (Refer attached-―CHRISTCHURCH HOSPITAL REDEVELOPMENT PROPOSAL AND LAND TRANSFER JOINT CHRISTCHURCH CITY COUNCIL/CANTERBURY DISTRICT HEALTH BOARD HEARINGS PANEL REPORT‖ - THE PROPOSED LOCAL BILL P 53 Council Agenda 23 July 2010)

[87] ICON and Civic Trust Comment: The ―Hearings Panel Report‖ to the Council, entitled ―Christchurch Hospital Redevelopment Proposal and Land Transfer‖, omits reference to the fact that the „protected‟ status of this Hagley Park land afforded by the Act, concerns protection from land exchanges. The relevant provision, Section 5(3) of the Act is not disclosed in the Report, just as it was not disclosed in the public notice or public consultation pamphlet. Thus, the public were not advised that the land swap proposal was contrary to the relevant legislation. Not disclosed here nor elsewhere in a Council report nor in the public consultation pamphlet was the fact that the intent of Section 5 Hagley Park is to protect Hagley Park land from removal for public works. (Refer Paragraph 7 relating to Mr Bywater‘s letter above for further details)

[88] The Report also refers to the need to remove the „reserve‟ status of the CDHB land to enable it to be transferred to the CCC. Unlike Hagley Park land, this land does not enjoy statutory protection from land exchanges under the Christchurch Hospital Act 1887 or the CCREA and, thus, any intention to transfer it in a land exchange would not be contrary to the Christchurch Hospital Act 1887 or the CCREA.

[89] “Once the land parcels have changed ownership it will also apply the Christchurch City (Reserves) Empowering Act 1971 to Area „B‟ to provide this land the same protection as the rest of Hagley Park and retain the existing overall quantity of land protected by the Act.”

[90] ICON and Civic Trust Comment: With the 1974 Amendment, the intent of Section 5 of the CCREA was to maintain all the land in Hagley Park, as of the date of commencement, protected from land exchanges and other means of removal for public works. Removing land from Hagley Park for a public work and affording land from elsewhere the statutorily protected status of Hagley Park, ie. by a land exchange, such as the CDHB proposal for the public work purpose of hospital redevelopment, to “retain the existing overall quantity of land protected by the Act”, was precisely the scenario, which Parliament, with the provisions of Section 5 and Section 5(3), in particular, in the CCREA, sought to prevent. As stated in Paragraph 7 relating to Mr Bywater‘s letter above, the Prime Minister made several speeches in Parliament, expressing strong support for the legislation, which had been promoted by the CCC and citizens.

[91] “Area „A‟ along with the balance of the land covered by the Christchurch Hospital Act 1887 will be used in the hospital redevelopment and be owned by the Canterbury DHB in fee simple.”(P 53)

[92] ICON and Civic Trust Comment: The fact of not all the CDHB land, currently vested in trust, being transferred to the CCC in the land exchange, but “the balance” being used for the hospital redevelopment, was not disclosed in the public notice or in the public consultation pamphlet. (Refer CDHB Construction on CDHB Land, Vested in Trust below for further ICON and Civic Trust comment on this matter.)

CDHB Construction on CDHB Land, Vested in Trust [93] Both the ―Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel‖ and the ―Hearings Panel Report‖ to the Council record the fact that the CDHB currently owns land between the Christchurch Hospital‘s Riverside block and the Avon River. However, omitted from both reports and from the public consultation pamphlet also, is the fact that this land is vested, in trust, ―as a recreation reserve for the inmates of Christchurch Hospital‖, under the Christchurch Hospital Act 1887. (Refer attached). As ICON and the Civic Trust noted in Paragraph 9 above regarding Mr Bywater‘s letter, this Act does not permit the CDHB to “erect, or permit to be erected, any buildings or constructions of any kind thereon, except such as may be approved by the Domains Board (now the CCC) having control of the lands in Hagley Park”.

[94] The public consultation pamphlet included two diagrams, regarding the proposed hospital redevelopment. One diagram, entitled “CHRISTCHURCH HOSPITAL Redevelopment Concept Proposal”, stated “Proposed Boundary”, in respect of a boundary located to the north of the proposed hospital buildings and to the south of the area of CDHB reserve land, the subject of the proposed transfer to the CCC. The other diagram, entitled “CHRISTCHURCH HOSPITAL Proposed Site Boundary” was an aerial photograph of the total land area, involved in the hospital redevelopment proposal, including the two pieces of land to be exchanged. It also depicted the boundary described above but included no description of that boundary. (Refer attached – public consultation pamphlet) Neither diagram disclosed evidence, that the “proposed boundary” was, in fact, a new northern boundary of hospital buildings, extending the area of land available for the proposed hospital redevelopment.

[95] From close scrutiny and comparison of the proposed new northern boundary (described above) with the boundary shown in the 1980 Certificate of Title CB20K/1038(Refer attached), it appears that, while the CDHB is proposing the transfer of some CDHB land, currently held in trust, to the CCC, it is proposing also to use the remaining southern piece, currently vested in trust, for the purpose of the proposed hospital redevelopment ie for CDHB construction (in terms of the 1887 Act). Thus, the CDHB is proposing to negate the 1980 boundary determining the land between the CDHB reserve and the hospital buildings, thereby encroaching into the CDHB area currently enjoyed by the public and patients as CDHB parkland (but not required for inclusion in the CDHB reserve area to be transferred to the CCC).

[96] This CDHB proposal was not disclosed in the public notice nor explicitly disclosed in the consultation pamphlet. Submitters were not provided with relevant information in the pamphlet to alert them to the fact that not only “Area „A‟” (ie. the land currently owned by the CCC in Hagley Park) but also “the balance of the land covered by the Christchurch Hospital Act 1887 will be used in the hospital redevelopment and be owned by the Canterbury DHB in fee simple.” (Refer attached ―Hearings Panel Report‖ THE PROPOSED LOCAL BILL P 53) Furthermore, the fact of the relevant Act requiring CCC approval for CDHB ―buildings or constructions of any kind‖ on that land, vested in trust, was not disclosed in the public consultation pamphlet or in either the report to the Joint Hearing Panel or in the ―Hearings Panel Report‖ Council. Not disclosed also in the public consultation pamphlet or the reports was the fact that the CDHB land is currently a reserve under the Reserves Act 1977 and that Act does not permit the sale or transfer of land. - (―CHRISTCHURCH HOSPITAL LAND EXCHANGE PROPOSAL‖ Report (Clause 22) Council Agenda 26 November 2009

[97] Thus, it appears that not only is the CDHB requiring the removal of land from Hagley Park for the hospital redevelopment, by means of a land exchange, but, for that same purpose, it is requiring the change of purpose and ownership in fee simple alone of the remaining CDHB land, currently vested in trust.

[98] Both the Introductory Report and ―The Hearings Panel Report to the Council‖ record that there are nineteen trees within the CDHB section of land. Presumably, the section of land referred to is that proposed to be transferred to the CCC. Not stated, however, in either of those reports, is the number of trees on the remaining piece of CDHB reserve land, required by the CDHB for the proposed hospital redevelopment, which would be destroyed, not to mention the adverse effect of the subsequent environmental changes, coupled with the changes arising from the proximity of new hospital buildings with heights exceeding City Plan rules, on the health and condition of the trees on the former CDHB land to be vested in the CCC and included in the area of Hagley Park.

[99] Both the public notice and the public consultation pamphlet omitted information regarding the fact of a Council decision to be made also, a requirement of the Christchurch Hospital Act 1887, in respect of a CDHB proposal to the CCC for approval of buildings and constructions on CDHB land, currently vested in trust, for prescribed purposes and the removal of the trust protection and reserve status of that CDHB land. Furthermore, in respect of the Council‘s decision of 23 July 2010, ICON and the Civic Trust find no evidence of the Council‘s consideration of the physical extent of the area (apparently 3,427 sq m ie, Certificate of Title total area 9977 sq m less 6550 sq (removed for land exchange), the number of trees located and the number of trees, which would be destroyed for hospital construction, recorded in an independent environmental report, assessing the loss of the reduced reserve‘s amenity and the environmental impact on the remaining reserve trees, resulting from the necessary removal of numerous trees for construction.

[100] ICON and the Civic Trust are concerned that, in respect of the Council decision 23 July 2010, regarding the ―Joint Christchurch City Council/Canterbury District Health Board Hearings Panel Report‖, the Council appears to have given approval to the CDHB for the use of land, currently vested in trust by the CDHB, for CDHB buildings and construction and for the land to be owned by the CDHB in fee simple alone.

[101] ICON and the Civic Trust note that the CDHB‘s proposed ownership in fee simple alone of land, originally Hagley Park land, is but the latest example of the CDHB (or its earlier equivalent) obtaining ownership of land, transferred from Hagley Park, vested by statute, in trust, for a prescribed purpose, and the CDHB subsequently negotiating the removal of the trust, to allow future hospital building, without public consultation. Thus, in this manner, and now also with the proposed Hagley Park land exchange, notwithstanding that it is not permitted by the relevant statute, the CDHB ever seeks to extend its boundaries, for the purpose of new hospital buildings, on land, whose purpose was prescribed by the 1855 Reserves Ordinance, ―to be reserved for ever as a public park”, for the long-term benefit of citizens. (Refer Paragraph 7 relating to Mr Bywater‘s letter above, regarding the Prime Minister‘s speech, in respect of Parliament‘s overriding trusts “in the name of convenience and to change entirely the purposes for which land has been set aside”.)

Local Government Act 2002 Provision for “Significant” Decisions [102] ICON and the Civic Trust note that Section 76 Decision-making (3)(b) of the LGA contains the mandatory provision that, in the case of a significant decision, a local authority must ensure, before the decision is made, that subsection (1) has been appropriately observed. Subsection 1 requires that every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81 and 82 as are applicable, subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79. Section 76(3)(a) requires that a local authority must ensure that its decision-making processes promote compliance with subsection (1). ICON and the Civic Trust note that, given the Council‘s acknowledgement of the significance of the land transfer decision in 2009, Sections 77, 78, 80, 81 and 82 had to be complied with, in terms of Section 76(3)(b).

[103] In respect of the Council‘s Christchurch Hospital Redevelopment Proposal and Hagley Park land exchange decision, 23 July 2010, the Council Agenda included no report for councillors, taking into account the fact of the Council decision being “significant” in terms of the Council‘s Significance Policy, and providing the relevant legal considerations/implications, in respect of the Council‘s obligations under the LGA.

[104] As noted above, the ―IMPLICATIONS FOR COUNCIL OF THE CHRISTCHURCH HOSPITAL REDEVELOPMENT‖ Report Council Agenda 23 July 2010 (Refer attached), advised that there were no legal considerations/implications of the issue under consideration.

[105] Furthermore, Section 80 Identification of inconsistent decisions of the LGA contains the mandatory provision: “If a decision of a local authority is significantly inconsistent with, or is anticipated to have consequences that will be significantly inconsistent with, any policy adopted by the local authority or any plan required by this Act or any other enactment, the local authority must, when making the decision, clearly identify- (a) the inconsistency; and (b) the reasons for inconsistency; and (c) any intention of the local authority to amend the policy or plan to accommodate the decision”

[106] Given the likely destruction of all the mature large trees on the land to be removed from Hagley Park and new hospital buildings exceeding City Plan height limits and the subsequent adverse environmental impact on the adjacent Hagley Park land identified by both the independent arborist and the CCC manager for the Botanic Gardens, no report, however, was provided to councillors, regarding the inconsistency of the Hagley Park land exchange decision with the statutory CCC Hagley Park Management Plan 2007. In that Plan, some key elements of the ―Vision for the Park‖ include: “The Park retains a landscape character that reflects the central city‟s open space heritage but also is in harmony with the contemporary urban environment.” “The present physical extent of the Park is fully and permanently conserved.” (ICON and the Civic Trust note that this reflects S5(3) of the CCREA, whereby Hagley Park land exchanges are not permitted) “The Park is a space that is managed effectively for a variety of public recreational uses…”

[107] “The Council‟s prime focus for its management of Hagley Park is to achieve the optimum outcome for all members of the public using it and to protect the park‟s environment and character for future generations to come.”- CCC HAGLEY PARK MANAGEMENT PLAN 2007 P1-2 (Refer attached)

[108] Section 82 Principles of Consultation of the Local Government Act 2002 sets out consultation principles, including: “(a) that persons who will or may be affected by, or have an interest in, the decision or matter should be provided by the local authority with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of those persons: (b) that persons who will or may be affected by, or have an interest in, the decision or matter should be encouraged by the local authority to present their views to the local authority: (c) that persons who are invited or encouraged to present their views to the local authority should be given clear information by the local authority concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented: (e) that the views presented to the local authority should be received by the local authority with an open mind and should be given by the local authority, in making a decision, due consideration:”

[109] ICON and the Civic Trust note that the ―CHRISTCHURCH HOSPITAL LAND EXCHANGE PROPOSAL‖ Report Council Agenda 26 November 2009 (Clause 14) advised, “The Council must consult in accordance with these principles, whether or not it uses the special consultative procedure…Either way the need to comply with the provisions of the Local Government Act, and to use a process that is in proportion to the significance of the decision, remains the same.”

[110] Furthermore, the report advised, “Section 78 of the Local Government Act 2002 requires the Council, in the course of its decision-making process, to give consideration to the views and preferences of the persons likely to be affected by, or to have an interest in the proposed land exchange.” (Clause 12)

[111] Given our submission‘s identification of relevant information not disclosed in the public notice, public consultation pamphlet and/or decision-making process, it appears that the Council has not complied with all the relevant provisions of the LGA, regarding its “significant” decision 23 July 2010, in respect of the proposed Hagley Park land exchange and the change of purpose and legal status of the remaining CDHB land, currently vested in trust.

CCC’s Public Consultation and Decision Making Processes [112] The ―EXCHANGE OF LAND WITH CANTERBURY DISTRICT HEALTH BOARD – CONSULTATION PROCESS‖ Report Council Agenda 10 December 2009 (Refer attached) advised, “Sometimes the SCP just isn‟t the right tool for the job and it is suggested that this is one of those times.” (Clause 30)

[113] Under ―LEGAL CONSIDERATIONS‖, the report advised: “However, whilst the exchange is significant in terms of the Council‟s significance policy, and will obviously be of interest to Christchurch residents, in fact the transaction will have no adverse effect on the park…‖ (Clause 11)

[114] ICON and Christchurch Civic Trust Comment: This second statement is totally inconsistent with the Council information included in the ―Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel‖ and the Council information disclosed to Mr David Thornley, regarding the loss of 26 mature trees and the anticipated adverse environmental impact on adjacent land in Hagley Park, hospital land and potentially the Botanic Gardens.

[115] On 10 December 2009, although the Council resolved not to use the Special Consultative Procedure, it did resolve to conduct public hearings. In response to Clr C. Reid‘s question as to the Council information to be provided for the public consultation, Mr. Ian Thomson, CCC solicitor, advised “as much information as is possible, relating to the project as a whole, including the land exchange.” “Any information which would have been in the Statement of Proposal” was to be included.

[116] (ICON and the Civic Trust note that Section 89(a) Summary of Information of the LGA requires, that for a Special Consultative Procedure Statement of Proposal, a summary of the information contained in a statement of proposal must “be a fair representation of the major matters in the statement of proposal” and (b) that the summary of information must “be in a form determined by the local authority”.)

[117] Instead of a Statement of Proposal, the CDHB and Council staff put together the ―Proposed Consultation and Community Engagement Plan‖ Council Agenda 10 December 2009 (Refer attached), in respect of the proposed land exchange and development of Christchurch Hospital. “They believe that this reflects both the nature of that development and the significance of Hagley Park to Christchurch residents.” -―EXCHANGE OF LAND WITH CANTERBURY DISTRICT HEALTH BOARD – CONSULTATION PROCESS‖ (Clause 15). ICON and the Civic Trust note, that the public consultation pamphlet ―Christchurch Hospital Redevelopment Consultation‖, including the submission form, was not submitted to the Council for approval before public distribution of approximately 3,800 copies.

[118] The above 10 December 2009 report (Clause 16) advised also, that the decision to be made by the Council was in respect of the land exchange only. This was confirmed by the Mayor, Bob Parker, in his response to the ICON letter (endorsed by the Christchurch Civic Trust) of 14 June 2010, addressed to you also, when he advised, “The decision for the Council to make at this stage of the Christchurch Hospital redevelopment is whether or not to consent to the transfer of land parcels and commence the parliamentary process that would enable this.” However, the fact that public consultation was being undertaken for a Council decision, in respect of a proposed Hagley Park land exchange, which could only be effected by the Council’s seeking an amendment to the CCREA, was not disclosed in either the CCC/CDHB public notice or the public consultation pamphlet. The former simply invited submissions with views on the proposed redevelopment of Christchurch Hospital. Furthermore, the fact that Hagley Park was the location of the land proposed to be removed and exchanged was not disclosed in the public notice.

[119] Information relevant to the Council‘s land exchange decision and not disclosed in the public consultation pamphlet ―Christchurch Hospital Redevelopment Consultation‖ and submission form: fact of CDHB having made a proposal to the CCC for a Hagley Park land exchange significance of relevant legislation protecting Hagley Park from the removal of land for public works by land exchanges, and the requirement to amend the Christchurch City (Reserves) Empowering Act 1971, to effect the land exchange, the proposed land exchange not being permitted by statute precedent created in amending the legislation protecting Hagley Park land from public works and land exchanges inconsistency of the CDHB proposal with the statutory CCC Hagley Park Management Plan 2007 CDHB proposal not anticipated in the Hagley Park Management Plan 2007, Hagley Park/Botanic Gardens Master Plan 2007 or CCC LTCCP 2009-2019 destruction of 26 mature large trees (all but three healthy), located in a woodland area of Hagley Park identified adverse environmental effects on adjacent Hagley Park land, hospital land and potentially the Botanic Gardens CDHB‘s illegal use of Hagley Park land for car parking non-inclusion of alternative siting options for the hospital development

[120] The Council solicitor‘s report for the 10 December 2009 Council meeting advised, “The Council‟s obligation to consult in accordance with the provisions of the Local Government Act 2002 remains the same, whether or not an SCP is used. The Council must still ensure that the steps it takes to obtain and consider community views are in proportion to the significance of the matter before it…”(Clause 30)

[121] Furthermore, the report advised, “Compliance with the decision-making processes of the Act is the basis on which the Council‟s process will be judged, whether or not an SCP is used…” (Clause 32)

[122] ICON and the Civic Trust note that, in the ―IMPLICATIONS FOR COUNCIL OF THE CHRISTCHURCH HOSPITAL REDEVELOPMENT‖ Report Council Agenda 23 July 2010 (Refer attached), under “CONSULTATION FULFILMENT”, “Not applicable” was stated. This report was prepared at the request of the Chair of the Hearings Panel. The Minutes of the Council meeting 23 July 2010 (Refer attached) record: ― 21.1. The Christchurch City Council and the Canterbury District Health Board note that consultation has been undertaken… “2. In order to facilitate the sustainable redevelopment of Christchurch Hospital, the Christchurch City Council and Canterbury DHB agree to proceed with the proposed land transfers between the two organizations and the steps necessary to implement this, on the following basis:

(a) The Christchurch City Council and Canterbury DHB will work together to promote the necessary local legislation to allow the transfers of land, …to proceed. (b) The Christchurch City Council and Canterbury DHB will work together in developing any necessary changes to the Christchurch City Plan or other district planning processes to allow the proposed Christchurch Hospital site redevelopment to proceed and recognize the intended future uses of the sites involved. 3. The Christchurch City Council and the Canterbury DHB note this is a one off land transfer and there is no precedent established, nor expectation of future expansion into Hagley Park…”

Court of Appeal of New Zealand Judgment 3 August 2010 [123] The Court of Appeal Judgment CA 258/2009 [2010] NZCA 346 3 August 2010 addresses the compliance of a local authority with the decision-making requirements of the LGA. It contains relevant mandatory matters, such as a local authority‘s duties under Section 78 Community views in relation to decisions, to give consideration to the views and preferences of persons likely to be affected by, or to have an interest in the matter. From the Judgment, ICON and the Civic Trust note the following as being relevant requirements also, in respect of the Council‘s decision-making processes, regarding Council approval of the CDHB Hagley Park land exchange proposal and approval of the CDHB proposal for CDHB construction on CDHB land, vested in trust:

[8] The first purpose of local government is to enable democratic local decision-making and action by and on behalf of communities…Its other purpose is to promote the social, economic, environmental and cultural well-being of communities in the present and for the future.

[9] Principles relating to the performance by a local authority of its role are stated in s 14. It should, inter alia, make itself aware of and have regard to the views of all of its communities.

[40] But the language of s 78(1) and (2)(a) is imperative: at stage 1 the council “must…give consideration to community views and preferences”. That can only mean consideration that is specific to the particular stages of the decision-making process as they develop.

[41] The same is the case at stage 2: s 78(2)(b)…

[124] ICON and the Civic Trust note, that “by s 79” Compliance with procedures in relation to decisions, it is for a local authority “to make, in its discretion, a judgment about how to achieve compliance with s 78” and s 77, “and, in doing so, to “have regard to the significance of all relevant matters”” [52]

[63] …But care must be taken to avoid moving to stage 3 decision-making before the consideration of views of persons likely to be affected by or interested in the matter has occurred at stages 1 and 2. The same is true of stage 4. If an earlier stage is omitted a local authority must back up and perform it, not proceed without it.

[72] To “give consideration to the views and preferences” of the relevant members of the community is not achieved by mere knowledge of such views and preferences. It comprises two steps. The first is…to secure information as to such views and preferences…

[73] There remains however the second step – of actually considering that Information for the purposes of stages 1 and 2.. [125] ICON and the Civic Trust note from [74], that it is for a local authority to show it has carried out its statutory obligation.

[126] Concerned as to the Council‘s compliance with the requirements of the LGA, ICON and the Civic Trust contend, that the statement in the Judgment, “This is not a case where it can be stated with confidence that the outcome would inevitably have been the same” [84], is applicable also, in respect of the Council‘s decision- making processes for the above approvals. Given: (a) the matter of the requirement for Council approval for both the CDHB Hagley Park land exchange proposal and the CDHB proposal for CDHB construction on and ownership in fee simple alone of CDHB land, currently vested in trust, (included in the ―Hearings Panel Report‖ to the Council 23 July 2010), (b) the requirement for amendment of two Acts (c) the fact of the decision being “significant” in terms of the Council‘s Policy on Significance (d) the fact of Hagley Park being a metropolitan park, reserved by Ordinance, for ever, as a public park and open for the recreation and enjoyment of the public, (e) the Council‘s mandatory statutory duty to secure information as to the views and preferences of the relevant members of the community, but on the other hand, the fact of the public notice requesting submissions with views on “the proposed redevelopment of Christchurch Hospital” only and the notice‘s omission of appropriate written and/or visual information, regarding the proposed Hagley Park land exchange or CDHB construction on CDHB land, vested in trust, ICON and the Civic Trust question, whether or how the Council could have had sufficient knowledge of the views and preferences of persons likely to be affected by, or to have an interest in the above matters requiring Council approval, to have considered them, not to mention the apparent absence of Council evidence showing that the Council had ensured compliance with its statutory obligation, in terms of the LGA.

[127] ICON and the Civic Trust contend that it appears that the CCC has not adhered to its statutory obligations, in terms of the LGA. Furthermore, as was advised by the Christchurch Civic Trust‘s Deputation to the 10 December 2009 Council meeting (Refer attached), seeking the Council‘s adoption of the Special Consultative Procedure, “In the event of a local bill being promoted to amend legislation protecting Hagley Park, members of Parliament would be seeking evidence of the adequacy of the Council‟s consultation process.”

CONCLUSION [128] In conclusion, ICON and the Christchurch Civic Trust contend that the public consultation was not fair for the general public, in terms of both ―consultation‖, as defined by the Court of Appeal in Wellington International Airport vs Air New Zealand [1993] 1 NZLR 671,675 “Implicit in the concept is a requirement that the party consulted will be (or will be made) adequately informed so as to be able to make intelligent and useful responses. It is also implicit that the party obliged to consult, whilst still entitled to have a working plan already in mind, must keep open and be ready to change and even start afresh.” and the consultation principles and decision-making requirements of the Local Government Act 2002. Relevant information was not disclosed to the public and, in several respects, not even to Canterbury District Health Board members or Christchurch City councillors. [129] ICON and the Christchurch Civic Trust respectfully seek your very careful consideration of the critical matters raised in this submission and request that you decline approval of the Christchurch City Council application for ministerial approval for the transfer of a piece of Canterbury District Health Board land for a piece of Hagley Park, owned by the Christchurch City Council.

ENCLOSED:

Letter - Office of the Mayor 2 July 2010 CCC media release – ―Future of historic Nurses Chapel assured‖ 23 July 2010 Letter - Mr A. Bywater to Hon. Kate Wilkinson 5 July 2010 Christchurch City Reserves Empowering Act 1971 CCC/CDHB public consultation pamphlet and submission form - ―Christchurch Hospital Redevelopment Consultation‖ ―CHRISTCHURCH HOSPITAL LAND EXCHANGE PROPOSAL‖ Report (Clause 57), Council Agenda 26 November 2009 CDHB media release – ―Consultation on redevelopment of Christchurch Hospital begins‖ 31 March 2010 ―IMPLICATIONS FOR COUNCIL OF THE CHRISTHURCH HOSPITAL REDEVELOPMENT‘ Report (Clause 21) Council Agenda 23 July 2010 Whangarei Hospital media release– ―Public opinion sought on plans for Whangarei Hospital‖ 11 July 2008 Canterbury Association‘s Reserves Ordinance Session V., No.2 ―Hospital land swap should proceed - panel‖ ―The Star‖ 21 July 2010, P A2 ―Memories Saved‖ P 8, published in ―New Zealand Historic Places‖, NZHPT, March 1995 Christchurch Hospital Act 1887 Alan Bywater‘s email to David Thornley 15 April 2010 ―CHRISTCHURCH HOSPITAL REDEVELOPMENT AND LAND SWAP Introductory Report to the Joint Christchurch City Council/Canterbury District Health Board Hearing Panel‖ P 13 Agenda Joint Hearings Monday 31 May- Tuesday 1 June 2010 CCC/CDHB public notice - ―Christchurch Hospital Redevelopment Consultation‖ ―The Press ―CHRISTCHURCH HOSPITAL REDEVELOPMENT PROPOSAL AND LAND TRANSFER JOINT CHRISTCHURCH CITY COUNCIL/CANTERBURY DISTRICT HEALTH BOARD HEARINGS PANEL REPORT‖-THE PROPOSED LOCAL BILL P 53 Council Agenda 23 July 2010 1980 Certificate of Title CB20K/1038 CCC HAGLEY PARK MANAGEMENT PLAN 2007 P1-2 ―EXCHANGE OF LAND WITH CANTERBURY DISTRICT HEALTH BOARD – CONSULTATION PROCESS‖ Report Council Agenda 10 December 2009 CCC ―Proposed Consultation and Community Engagement Plan‖ Council Agenda 10 December 2009 Minutes CC Council Meeting 23 July 2010 - 21. JOINT CHRISTCHURCH CITY COUNCIL/CANTERBURY DISTRICT HEALTH BOARD HEARINGS PANEL REPORT DEPUTATION BY APPOINTMENT – CHRISTCHURCH CIVIC TRUST, AGENDA ITEM 46. EXCHANGE OF LAND WITH CANTERBURY DISTRICT HEALTH BOARD – CONSULTATION PROCESS Council Meeting 10 December 2009