Follow-up letter of 17 Feb first, original letter of 10 Feb below
17 February 2021
Dear Mr Mayor
We refer to our open letter to you dated Wednesday 10 February 2021.
This letter provides crucial new information to support our contentions in that letter with respect to the CEO of Auckland Council, James Stabback, and members of his executive team.
In addition, this new information implicates not only Panuku Development Auckland but also Auckland Council in what appears to be a deliberate circumvention of the Resource Management Act and it’s consenting process.
The new information is:
1. In the early morning of Friday 12 February, Caleb Azor (the lone protestor occupying “Big Mac”), was surprised by the sudden appearance near his position in the tree of William Deihl, Executive Director of Ockham Construction. We note that there is a health and safety complaint currently with police regarding this behaviour by Mr Deihl.
2. During the conversation, which was recorded by Caleb on his mobile phone, (Mr Diehl makes it clear he is aware Caleb is holding his phone) Mr Deihl makes the following claim:
“…We got sold this land on the proviso that these trees weren’t going to be here…”
3. This is a clear admission that the developers, Ockham/Marutūahu, had a contractual commitment provided to them by someone within Auckland Council with the authority to provide such a commitment.
This raises a number of serious issues:
1. It would seem that the decision taken by CEO James Stabback and his Executive Team to permit the removal of Big Mac was a foregone conclusion, predicated on the irregular agreement that Ockham-Marutuahu claim to have made with Auckland Council.
2. This is a clear circumvention of Auckland Council’s democratic processes, compromises the Whau Local Board delegated authority, and compromises Auckland Council’s own expert staff.
3. Auckland Council is required to consult with iwi in good faith. Ngati Whatua Orakei are on record as having opposed the circumvention of the Scheduled Tree Register by this Resource Consent application and Tree Owner approval process. It is now clear that consultation with iwi was not conducted in good faith, because an agreement had already been reached that the developers could remove the tree.
4. The Ockham Residential website includes the following statement dated 12 February 2021:
“Ockham and Marutūahu were invited by Panuku Development Auckland (backed by the Whau Local Board and Auckland Council) to undertake the Aroha project in partnership with HUD.”
This raises questions as to the involvement of representatives of Panuku in assurances made to Ockham/Marutūahu with respect to Big Mac.
We would further note the following with respect to the Whau Local Board:
1. It has also come to light that some members of the Whau Local Board did not get the memorandum dated 16 December 2020 written by Claudia Wyss and Rod Sheridan ‘informing’ them of the decision to remove Big Mac that was to be made by staff of Council under delegated authority of Council’s Chief Executive.
2. It is understood that not all members of the Board were happy to allow Auckland Council staff to take this decision. This concern would appear to have been well founded.
3. We also understand that there have been requests from Local Board members to view the letters including threats of legal proceedings that were referred to in CEO James Stabback’s decision. It appears that these documents are not available to the Local Board and members of the public. These letters should be made public immediately. Failure to do so would fuel the presumption there is something to hide.
4. We believe that the decision is a misuse of the CEO’s delegated authority which renders it unsafe and probably invalid.
We have already called into question the Tree Owner approval process in our previous letter. This further evidence raises more questions as to Council’s bad faith and now the question of dishonesty in public office.
We are also sending this letter to the Minister of Housing, the Minister of Local Government and the Auditor General.
A copy of the recording is available on request.
We look forward to receiving your response to this letter.
Wendy Gray and Caleb Azor
10 February 2021
Dear Mr Mayor
We are writing to you as concerned residents and ratepayers of Auckland and as Tree Advocate and Tree Protector.
This is an open letter because of the imminent removal, scheduled for Thursday 11 February 2021, of the Notable Macrocarpa Tree locally known as “Big Mac” located on the corner of Ash Street and Great North Road Avondale.
We are writing to make a formal complaint regarding the conduct of the CEO of Auckland Council, James Stabback, and members of his executive team, with regards to the decision on 23 December 2020, on delegated authority, to grant permission for the removal of this iconic landmark.
The specific conduct alleged in this complaint is as follows:
- Failure to follow usual process and making an exception for this developer and his partner by escalating this tree owner approval decision, and the decision-making process, to the Executive Team (Claudia Wyss and Rod Sheridan) and to the CEO James Stabback himself.
- Failure by the Executive team (Claudia Wyss and Rod Sheridan and therefore James Stabback) to consider, (do more than note), the opposition to the removal of this tree from the Whau Local Board (the landowner consent authority), and the Tree Council.
- Failure to consider (do more than note) the Landscape Architect report (17 December 2020) provided by the Tree Council, disputing claims in the Greenscene report (4 December 2020), relied on by Claudia Wyss and Rod Sheridan and therefore James Stabback, that the tree is in poor health and to justify their favourable decision.
- Failure by the Executive team (Claudia Wyss and Rod Sheridan and therefore James Stabback) to consider, (do more than note), the opposition to the removal of this tree from Auckland Council’s own Resource Consents Department Arborist and Council’s Senior Heritage Arborist.
- Failure by the Executive team (Claudia Wyss and Rod Sheridan and therefore James Stabback) to consider, (do more than note), the opposition to the removal of this tree from mana whenua Ngati Whatua Orakei, thereby failing to implement the Auckland Plan 2050 to adopt a Maori World view to treasure and protect our natural environment. It is not tikanga to destroy the mauri of this mature locally important Notable tree in the circumstances of this decision.
- Council’s commissioning (Claudia Wyss and Rod Sheridan and therefore James Stabback) of the Greenscene report in order to discredit (a fair inference given that this was in fact the effect of the obtaining of this report) the advice of their own skilled arborists in order to enable the Executive Team (and therefore James Stabback) to make a decision favourable to the developer.
- According to the Tree Owner Approval Guide the aim is to respond to an application within 3 days and the Council will endeavour to process the application within 10 working days. Longer time frames are envisaged for complex applications. The application envisages that the applicant will provide all the information for the approval. In this case, Auckland Council commissioned the Greenscene report and then relied on it not its own skilled arborists? The Guide also sets out the matters to be ‘considered’ by Auckland Council. ‘Consideration’ requires ‘continuous and careful thought, careful weighing of the reasons for and against something’ (Webster). Merely noting something without further comment is not ‘consideration’; it is box-ticking.
- Failure by the Executive team (Claudia Wyss and Rod Sheridan and therefore James Stabback) to properly investigate the developer’s claims. 40% of the trees mass occupies the developer’s site (the greater part 60% being on Council/Whau Local Board land), yet the developer claimed that failure to remove this tree would result in the inability to build 34 of the 117 proposed apartments. On the face of it, this does appear to be overegging the consequences.
- Failure by the Executive team (Claudia Wyss and Rod Sheridan and therefore James Stabback) to investigate the developer’s threats of legal action (the primary reason given for allowing the consent) when (a) it was clear from the Resource Consent application that the developer was informed in August and September 2020 that Council arborists were not minded to grant tree owner consent, and (b) that they would also be required to obtain tree owner consent to be able to proceed with the development.
- Subsequent to the decision being made, it has come to the attention of the community that there have on-going negotiations between the developers and Mana Rakau, the protest group who are currently occupying a property at Canal Rd, Avondale, and who have also been occupying the site of “Big Mac”.
- The community has been informed that these negotiations have involved James Stabback, and the Chair of Panuku, the prior owner of the development property. It is noted that the Chair of Panuku is also Chair of the applicant’s partner in this Aroha development, Hauraki Confederation Marutāūhu. It is also noted that James Stabback was on the group who selected the Chair of Panuku to his position.
- There is widespread concern within the community that the CEO and the Executive team have not been impartial in this matter.
- Taken together the cumulative effect is that ultimately by his actions in this matter, James Stabback has brought his office and Auckland Council into disrepute.
It, therefore, follows that on the facts this decision is unsafe and the developer and the Chair of Marutāūhu/Panuku should be immediately informed.
You are asked to formally investigate this complaint and report back in an open letter to the news media.
This open letter is also being sent to the appropriate Minister, committees, the Auditor General and the news media.
The public of Auckland are invited to come to the corner of Ash Street and Gt North Road on Thursday 11 February 2020 to protest the failure of Auckland Council to protect Auckland’s most important and valuable Scheduled trees and to protest the killing of the mauri and wairua of this living being that is Big Mac.
Wendy Gray & Caleb Azor