The decision that Crown Law has reached is open to challenge in two ways. First, for such a significant decision for Christchurch it has come about through an inadequate process. Second, it has failed to consider the issues properly. Unfortunately, Crown Law has formed its view on limited evidence.
The contention of Save Our Arts Centre is that, having regard to all the evidence, it is clear that the Arts Centre Trust Board has not altered its deed validly and that the proposed Music School falls outside the scope of the objects and purposes of the Trust on which the Arts Centre is held for the benefit of the people of Christchurch and New Zealand.
A complaint about the actions of the Arts Centre Trust Board was first made in July 2009. Apart from an acknowledgment from Crown Law of receipt of the complaint, no substantive communication was received from Crown Law about the complaint for six months.
Save Our Arts Centre knows that a response to the complaint was received by Crown Law from the Arts Centre Trust Board. Crown Law never gave that document to the complainant for comment; instead the complainant obtained that document through another source and took it upon itself to comment to Crown Law on it. This, by anybody’s standards, is a deficient process.
Then there is the issue of the use of evidence. Crown Law only refers to one of the many experts engaged. Given the breadth of expert evidence available, it is surprising that only one report is referred to. Crown Law has failed to consider how the other evidence available shows the negative impact the Music School will have on this heritage site. It has simply ignored this evidence.
Given these procedural flaws, and the limited information that Crown Law has based its conclusions on, Save Our Arts Centre does not believe that the opinion is as decisive in this case as the media has portrayed.
Now I turn to the substance of the Crown Law opinion. It has not directly considered important legal and factual arguments.
Crown Law has concluded that the 1992, 1998 and 2007 amendments to the Trust Deed were valid as they have “not detracted from or altered the exclusively charitable object of the trust”. Crown Law based that conclusion on the power to amend the objects of the Trust Deed given to the Arts Centre Trust Board by clause 10 of the Deed.
Crown Law did not consider clause 10 in full. That is obvious because only part of the clause is quoted in the opinion from Crown Law. The full clause must be considered. That clause says the Trust Board may amend the Deed:
provided that no such alteration or addition shall in any way detract from or alter the exclusively charitable objects of the Trust as herein declared.
The important words are “as herein declared”. That phrase means the Trust Board has only a very limited power to vary its Deed. It has the power to vary administrative powers under certain conditions. It has no power to vary the objects of the Trust. In fact, the words “as herein declared” expressly prohibit variation of the objects of the Trust.
The Trust Board cannot vary even administrative terms or powers where the change might detract from the declared objects of the Trust as they are set out in the original Trust Deed.
Clause 10 in fact restricts the Trust Board from altering the objects that are declared in the original Trust Deed.
The argument was specifically put to Crown Law, but appears to have been ignored. This argument formed a key part of the case advanced by Save Our Arts Centre during the High Court injunction hearing in December 2009. Justice Fogarty himself concluded there was a serious argument that the changes to the Deed were invalid.
Crown Law has also concluded that the Board minutes which record the discussions about the 2007 amendments by the Arts Centre Trust Board show “the Board was motivated to consider amendments as part of a strategic planning and governance review”, which Crown Law considered a proper basis for considering amendments to the Trust Deed.
Crown Law’s opinion is highly contestable in light of the Board’s own minutes. The minutes actually show that the Trust Board wished to fashion the objects to suit itself. That is supported by a Constitutional Review document circulated in October 2004, where ‘key questions for consideration’ include:
Are the objectives of the Trust…still relevant and do they provide a framework for good governance? Are they consistent with the direction the Board has developed for The Arts Centre in its mission and vision statements?
At a Trust Board meeting on 11 October 2004 one Board member expressed:
the belief that the current constitution is an historical document to ensure the conservation of the site which has been appropriate in the past, but it is not forward looking or applicable in its entirety to the current times.
So it is clear the Trust Board approached the 2007 amendments in the wrong way. Instead of asking whether the new mission and vision fitted in with the objects, the Trust Board asked if the objects fitted in with what it wanted to do, and then changed the objects to suit.
Crown Law has concluded that the building of the Music School is within the powers of the Trust Board as it fits in with the objects of the Trust. The reasons for that conclusion are also contestable.
Crown Law has accepted that the Music School proposal will provide additional income which will assist with funding the maintenance, preservation and reconstruction of the existing stone buildings. That is an argument constantly advanced by the Trust Board in favour of the Music School. However, the facts are more complicated than this simple assertion.
The Trust Board is going to receive a $2.5 million payment for the first 20 years of rent, or the equivalent of $125,000.00 annually (not adjusted for inflation). This is only a little more annually than the rental from the existing car-park area. It does not take into account, for example, disruption to nearby tenants during the construction for which the Trust Board will have to pay compensation. Clearly, then, the financial benefits from the proposal are very limited and perhaps non-existent.
The Crown Law opinion did not properly consider the negative effects or the primary purpose of the Trust on which the Arts Centre is held. The opinion acknowledges issues with the nature and scale of the building. Reference to the resource management process, and the possibility of design changes, is not a substitute for considering the negative effects of this building on the heritage values of the existing historic buildings and site.
That is particularly so given the evidence of respected architect and heritage expert Ian Bowman, who reaffirmed the negative impact of the Music School after the post-Vines report changes were made to the design. Crown Law said that the fact the design can be altered to make it more sympathetic to the existing building was significant. However, the evidence shows that such alterations have so far failed to prevent the negative effect on the heritage values of the existing buildings.
It is also noted that the coverage so far has omitted substantive reference to the range of other separate complaints made about the Trust Board. These complaints relate to questions of conflict of interest and inadequate decision-making process. Save Our Arts Centre looks forward to the early resolution of these.
The Arts Centre is held primarily “for the preservation of the architectural character and integrity of the historic stone buildings presently on that site”. That must be a primary decision-making factor for the Trust Board. For the sake of a minimal – maybe non-existent- financial benefit the Trust Board is willing to endorse a building which will undermine that very purpose. Save Our Arts Centre believes that represents a breach of trust and the evidence clearly establishes that.