FOODSTUFFS NORTH ISLAND LIMITED AND WELLINGTON CITY COUNCIL

[2025] NZCA 164

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA607/2024
 [2025] NZCA 164

BETWEEN	FOODSTUFFS NORTH ISLAND LIMITED Applicant
AND	WELLINGTON CITY COUNCIL Respondent

Court:	Palmer and Woolford JJ
Counsel:	S F Quinn and E L Manohar for Applicant N M H Whittington for Respondent
Judgment: (On the papers)	12 May 2025 at 3 pm

JUDGMENT OF THE COURT

The application for an extension of time is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

What happened?

1. Foodstuffs North Island Ltd (Foodstuffs) owns leasehold interests in Thorndon New World, located between Molesworth Street and Murphy Street in central Wellington.  Foodstuffs applied for judicial review of the decision of Wellington City Council (the Council) to implement bike lanes on the right-hand sides of those streets.  On 30 April 2024, the High Court issued its judgment declining the application for review (the Molesworth Street decision).[1]  Johnstone J held that it “was very far from being a decision that no reasonable local authority could have reached”.[2]  Foodstuffs decided not to appeal.

   [1]Foodstuffs North Island Ltd v Wellington City Council [2024] NZHC 987.

   [2]At [93].

2. On 15 July 2024, this Court issued a judgment granting an application for judicial review of the Council’s decision to reconfigure parking on Thorndon Quay to enhance cyclist safety (the Thorndon Quay decision).[3]  That was 32 days after expiry of Foodstuffs’ right to appeal the Molesworth Street decision.  This Court held that the Council’s process came “perilously close to an unlawful sub-delegation” and concluded the Council’s Planning and Environment Committee did not have enough information to reach an informed view of the reasonably practicable options, breaching s 77(1) of the Local Government Act 2002.[4] 

   [3]Thorndon Quay Collective Inc v Wellington City Council [2024] NZCA 316, [2024] 3 NZLR 361.

   [4]At [63] and [66].

3. On 8 August 2024, Foodstuffs asked the Council to reconsider its decision on Molesworth Street on the basis of this Court’s Thorndon Quay decision.  On 15 August 2024, the Council refused.  On 17 September 2024, 78 working days out of time, Foodstuffs applied for an extension of time to appeal the Molesworth Street decision.

Submissions

1. Mr Quinn and Ms Manohar, for Foodstuffs, submits that the processes for the Council’s decision on Thorndon Quay are not materially different from its decision on Molesworth Street.  Both decisions suffer from no alternative option being put before the Council.  The appeal issue is a single and narrow point but the case is significant and of public importance.

2. Mr Whittington, for the Council, submits the delay is significant and inadequately explained.  The proposed appeal might prejudice the Council which has undertaken construction work of around $200,000 to kerb alterations on the corner of Molesworth and Aitken Streets.  The merits of the proposed appeal are weak because of material factual differences between the Council’s two decisions.

Should an extension of time be granted?

1. In Almond v Read, the Supreme Court summarised the principles, and identified the considerations, relevant to decisions on extending time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.[5]  The ultimate question is what the interests of justice require, in the particular circumstances of the case.[6] 

   [5]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

   [6]At [38].

2. It is in the interests of justice to grant the extension of time because:

   (a)The delay in seeking to appeal the Molesworth Street decision is relatively significant for a judicial review.  But it is adequately explained by the issuance, and steps taken by the parties after, this Court’s Thorndon Quay decision.

   (b)While the merits of the appeal are difficult to assess on the material before us, and the merits are not dispositive, we cannot currently say that the appeal lacks merit.

   (c)The likelihood of prejudice to the Council would depend on the appeal succeeding and discretionary relief being granted that requires changes to alterations that would not otherwise be required.  As yet, that is not established either.

   (d)The issues are of significant local interest to the parties and more generally.

Result

1. The application for an extension of time is granted.

Solicitors:
DLA Piper, Wellington for Appellant
Wellington City Council, Wellington for Respondent