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Pou within Kelvin Park

16 Dec 2014

Pou within Kelvin Park

Martin Williams was appointed as an independent commissioner to review the procedures regarding the establishment of pou within Kelvin Park. The review and interviews were held on 28-29 November 2014. 
Read Mr Williams Report Regarding Establishment of Pou Kelvin Park

Further background information

Pou only required resource consent

7 November 2014

Chief executive Judy Campbell explains the process around the C Company Gallery Pou in Kelvin Park.CE Judy Campbell

A high level of community interest and concern has been expressed regarding the arrival of the Pou in Kelvin Park. I would not normally comment on issues that have a political element but because of the high level of misunderstanding of the legal requirements I would like to clarify this so that reasonable people can make a judgement of their own. Some people won’t like the Pou no matter what the legality of the process, which is their right, a right of course that many of the soldiers of C Company died to defend.

I understand and agree with the concerns about the surprise element in the arrival of the Pou and I cannot defend that element of this issue. I sincerely apologise for the impact of any inappropriate decision making that my staff may have made. I have had the consenting process reviewed by internal and external lawyers who have assured me it was legally sound. In saying that I am trying to clarify that while parts of it may have been unwise, it was not illegal. That however doesn’t excuse what was clearly a lack of communication with the many interested stakeholders and the community in general.

Briefly to explain the legal issues. The C Company Gallery was required to have 4 things: a building consent (which ticks off the building’s structural strength etc), a resource consent (which looks at whether it fits within the land its on), a lease (as anyone occupying Council land requires) and sign off from the Minister of Local Government to the lease (because it was different from what the Deed envisaged 56 years ago when it was written). Each part played a different role and was bound by different rules. Many people have become confused about this.

The Pou required only a resource consent, because they are not buildings, so no building consent; no lease, because they don’t claim exclusive possession of the space (i.e. they aren’t fencing off the space) and as they are not buildings, they are allowable within the terms of the Lysnar Deed and so no sign off from the Minister of Local Government is required.

If we look at the extension on the Museum itself, which took place almost simultaneously, there was no public notification of the consent and no consent hearing – and no public outcry, despite several large trees being removed and the extension of the building into the park space. The reason for this I presume is because people knew it was coming and because it was within the terms of Miss Lysnar’s Deed of Endowment.

This is probably the heart of most reasonable people’s concern, that in some way the creation of the gallery and now the Pou are against the Deed and therefore against Miss Lynsar’s intentions. Much of the comment that was made at the resource consent hearing for the building was in fact about the Deed and whether the building fitted the Deed. In fact the Independent Commissioner who heard that consent did not take regard of any of that comment since it was outside of the scope of a resource consent. It was the Minister of Local Government who made the assessment about whether it was acceptable to vary from the Deed and he found that, bearing in mind all factors, it was.

I am happy to put the Deed of Endowment on our website for anyone to look at, although I would caution against amateur legal interpretation. Take it to any lawyer though and you will see that while the Deed says buildings should be kept to the front part of the land (hence the Museum and lack of fuss around the extension) it does not say that things like the Pou are forbidden in the part of land they are in – in fact the wording almost suggests that type of “activity” would be welcome. So the Minister of Local Government would have had nothing to say about the Pou.

The resource consent required sign off by managerial staff on whether the Pou fitted the park setting. That sign off was given. They had the legal right to make that call. Again we are left with the surprise to the stakeholders and the community and I fully agree this aspect could have been handled much better than it has been.

Given the high level of public interest and concern about Council processes I will commission a publicly available review of all aspects of the process by a suitably qualified and independent person. The Terms of Reference and the appointment of the reviewer will be agreed by Council and also publicly available. I do not propose to look at removing the Pou. Despite the poor process I believe a majority of councillors, and I believe the community, support their inclusion in Kelvin Park. The review would be completed by the December 11 Council meeting.

I am saddened that such wonderful gifts to the community in the form of the C Company Gallery and its attendant art works have become so embroiled in controversy that as a community we are running a real risk of creating an ethnic divide where we should be building more bridges. I hope that by undertaking a review of the process and seeking to learn lessons from this that we are able to move forward as a community.

Relevant documents  

Miss Lysnar's Deed of Endowment (2mb)

Councillor Cranston's report to Council Oct 2014 (138kb)
Staff report to Council - 14/365 - Processes on Location of Pou in Kelvin Park (602kb)

Pou in Kelvin Park