Through lawyer Phernne Tancock, they said the hearing should not go ahead unless KiwiRail could prove it had the legal right to continue. Tancock said the issue “may render it inappropriate for the (hearing) panel to continue down the current flight path towards a hearing on 9 August”. “Parties should not be put through a lengthy hearing if the legality of the notice of requirement is in question.” Fox said both he and the city council had asked KiwiRail to provide the legal opinion that it did have the power to designate land for the project. That had been withheld on the grounds of legal privilege.
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That advice was that Jessen’s submissions were not a breach of any legal standards or codes. There was no legal barrier to the council engaging a lawyer to present its case and make submissions that went beyond evidence. So long as the church and any other participants had an opportunity to comment on the council’s submissions, standards of fairness and natural justice could be satisfied. The independent lawyers said the submissions clearly advocated for the consents to be turned down, but that did not mean the council as a whole was biased. It was up to the commissioners to judge how much weight they gave those submissions in the course of reaching their decision.
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Decisions on the future of Palmerston North s All Saints church are on hold while legal arguments are resolved. Maassen said the council should have acted as a neutral regulator, and should not have had legal representation to make submissions and advocate for a particular outcome. Heritage New Zealand, which opposes the proposal, did not present submissions in support of its evidence, choosing to rely on what it expected Jessen to say. “That revealed to the church. that the council was committed to an outcome so that the application was declined,” Maassen said. “It is tough to know how to navigate a way forward with clarity and charity, while addressing the strong sense of disappointment the church feels about how the council has performed its statutory function.”
It originally asked for answers to be supplied by February 1, but has agreed to extend that deadline for a couple of weeks. The issues include lighting, stormwater management, social and economic effects, impacts on the roading network and cultural assessments. A KiwiRail spokesman said there were no surprises in the request. “For a project of this scale it is common for there to be additional questions from the council.” They said the two parties had been working constructively together on the process. “KiwiRail is working through these questions with our project team and expects to respond to the council in mid-February.”