Westgate.

Auditor-general argues for more Westgate deal disclosure but doesn’t see wrongdoing

Auditor-general Lyn Provost told Parliament yesterday, in a report tabled on dealings between the Waitakere City and Auckland Councils and Westgate landowner NZ Retail Property Group Ltd (NZRPG), that both councils could have made better disclosure. But she did not disclose any wrongdoing in the financial arrangements.

Image above: The Westgate layout looking down the North-western Motorway toward Henderson, as it was in 2013.

The Auditor-general’s office looked into specific aspects of Auckland Council’s project to develop a new town centre in Massey North (the council name for what NZRPG always called Westgate) after several people raised concerns about the establishment & management of this new town centre. They questioned whether the public & private costs & benefits of the project had been appropriately balanced between Auckland Council & a private developer.

Auditor-general Lyn Provost.

Mrs Provost said the focus of the office’s inquiry was on Auckland Council’s management & governance of the project from 1 November 2010, when the newly amalgamated council inherited the project from the now dissolved Waitakere City Council.

“One of the concerns raised with us was about the lack of transparency, in particular being unable to access information about the project. In our view, Auckland Council could have made more information about this development available. It is important that local authorities strike the right balance between balancing commercial sensitivity, maintaining legal privilege as appropriate and being open with ratepayers & elected officials. Such openness allows public discussion & debate, and is essential to supporting public sector accountability. This exercise has highlighted once again the importance not just of making good decisions but also of being able to show that good decisions have been made.”

The background

A block in the first Westgate stage, pictured in 2012.

Companies in the NZRPG group owned or controlled much of the land where the new town centre was to be located. As a result, Waitakere City Council entered into a memorandum of understanding with NZRPG in 2004 to establish a collaborative working relationship to design & develop the town centre. In 2010, the council & NZRPG entered into a suite of contractual arrangements for the actual development of the new town centre and the sharing of the costs between them.

“While the focus of my inquiry was on Auckland Council’s management & governance of this project from 2010 onwards, concerns were also raised about Waitakere City Council’s decision to pay the developer $6 million for a street in the existing Westgate shopping centre. Concerns had been raised about this purchase because, usually in a new development, a developer will bear the cost of constructing roads – which then vest in the council at no cost when land is subdivided.

“Accordingly, in order to provide sufficient context, my report sets out additional background detail about the decision-making process undertaken by Waitakere City Council in relation to the purchase, and the basis on which the purchase price was agreed.

“Concerns were also raised with my office about the contractual arrangements between Waitakere City Council (and, subsequently, Auckland Council), Transpower & NZRPG to relocate transmission lines passing over the development, underground. Waitakere City Council entered into an agreement with Transpower to pay the costs of the relocation.

“The evidence supports the need to relocate the power lines for the development of the town to proceed.

Development in 2015: The first stage of the North-west shopping mall completed, ground works started for stage 2 and the public square, Te Pumanawa.

“In the agreement with Transpower, Waitakere City Council accepted the primary responsibility to pay all the cost of relocating the lines – that is, its own 35% & NZRPG’s 65% share of the cost. The share of the costs to be paid by NZRPG would be recovered under a separate agreement between Waitakere City Council & NZRPG.

“Waitakere City Council was clearly aware that, in accepting the primary payment risk, it needed to protect its position in case NZRPG failed to pay its share of the costs. It put in place several mechanisms to provide this protection, including an offsetting agreement.

“Importantly however, although Auckland Transition Agency confirmed the agreement with Transpower, it did not confirm the offsetting agreement. As a result, the agreement with NZRPG to pay its share was legally invalid. As a result, the council was party to a binding contract to pay the full costs of relocating the power lines without having a corresponding binding contract in place to recover NZRPG’s share of the costs from NZRPG.”

Auckland Council inherited the project and the issue relating to the legal invalidity of the agreement, and resolved this issue by entering into a new agreement with NZRPG to share the costs.

“However, in 2012, it then decided to postpone NZRPG’s obligation to pay its share. Council documents indicate that this decision was made because it perceived a risk to the progression of the project. The result of this decision has been that the financial risk borne by the council & its ratepayers will continue until such time as NZRPG’s contribution has been fully paid. As at 20 September 2016, NZRPG had paid about $3 million of the $11.3 million it owed to Auckland Council.”

Mrs Provost said Waitakere City Council carried out several infrastructure works at its own expense, as part of its contractual relationship with NZRPG. This included construction & widening of roads, the development of intersections, provision of water supply & wastewater services, and the design & construction of the town square & library. “The intention was that the council would subsequently recover some of the costs associated with this work through development contributions to be paid by the developer….

“The calculation of development contributions in this project was not straightforward, given the complexity of assessing the balance between the public & private benefits of the development. We have been unable to ascertain or calculate the value of the development contributions, but expect it to be a significant amount of money.”

On 28 October 2010, days before Auckland Council took office, Waitakere City Council reached an agreement with NZRPG to vary the amount & timing of payments of development contributions.

This was recorded in an exchange of letters over 2 working days, but Mrs Provost said the Auckland Transition Agency didn’t confirm the decision.

“Auckland Council subsequently entered into an agreement with NZRPG to formalise the development contributions arrangements. The agreement provides for the offsetting of some of the development contributions owed, as well as the postponement of when some development contributions are to be assessed & paid.

“While there are still development contributions payable by NZRPG before the end of the project, Auckland Council has taken on a greater risk at this stage in the project by the postponement of these payments. Whether the final amount of development contributions is appropriate will need to be weighed up as part of the overall balance of costs between the parties at the conclusion of the project.”

Specific steps taken by Auckland Council

Once Auckland Council became responsible for the project, Mrs Provost said it immediately sought legal advice on the agreements it had inherited.

“It became clear that the Auckland Transition Agency had not confirmed all of the agreements, which was a prerequisite for transfer to Auckland Council. Auckland Council signed replacement agreements to ensure that they were all legally valid. In October 2011, the regional development & operations committee of Auckland Council agreed that a review into probity issues raised at the committee be conducted and that the review be reported back to the committee for further consideration. Auckland law firm Meredith Connell was commissioned to undertake that review.

“In my view, commissioning this review was good practice given the complicated matrix of arrangements between the former Waitakere City Council & NZRPG. The review put Auckland Council in a good position to understand the obligations it had inherited and any risk that it might need to manage.

“The Meredith Connell review was summarised & discussed at the public-excluded part of the June 2012 regional development & operations committee meeting. The committee agreed that the report & associated resolutions remain confidential until the reasons for confidentiality no longer exist.

“Auckland Council has since improved the contractual arrangements with NZRPG, including linking payments more directly to the delivery of work and instituting a better procurement process for subcontractors working on the new town centre.”

Auditor-general’s conclusions

Mrs Provost concluded: “The amount of information provided to the elected members of Auckland Council on this development could have been more comprehensive. Councillors have been concerned about the project and should not need to resort to me to get answers.

“In my view, the risks involved with this development warrant greater involvement by Auckland Council’s governing body in overseeing the project, including its costs. More information & clarity about the issues that management need to refer to the governing body would help this oversight.

“Public concerns have been raised with my office, and directly with Auckland Council, about the lack of transparency with this development. My office received complaints from members of the public who have been unable to access information about the project, including the Meredith Connell report. Similar concerns have been expressed to my office by council members.

“It is important that local authorities strike the right balance between balancing commercial sensitivity, maintaining legal privilege as appropriate and being open with ratepayers & elected representatives to provide transparency about the agreements they enter into and to demonstrate that they are getting value for money. Such openness allows public discussion & debate, and is essential to supporting public sector accountability.

“In my view, Auckland Council could have made more information about this development available. Auckland Council obtained the Meredith Connell advice on a confidential basis and has treated the report as legally privileged & commercially sensitive.

“Given the public interest and that commercial sensitivity has likely reduced with the passage of time, I encourage Auckland Council to consider what information it could now release – including all or some of the Meredith Connell report.”

Link:
Auditor-general’s statement & report

Attribution: Auditor-general’s office.

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