Foodstuffs North Island Limited v Wellington City Council
[2024] NZHC 987
•30 April 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-533
[2024] NZHC 987
UNDER The Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2015 IN THE MATTER OF
an application for judicial review
BETWEEN
FOODSTUFFS NORTH ISLAND LIMITED
Applicant
AND
WELLINGTON CITY COUNCIL
Respondent
Hearing: 20 February 2024 Appearances:
S Quinn and E Manohar for applicant N Whittington for respondent
Judgment:
30 April 2024
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 30 April 2024 at 10.27 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
DLA Piper, Wellington
K Lee, Wellington City Council
FOODSTUFFS NORTH ISLAND LTD v WELLINGTON CITY COUNCIL [2024] NZHC 987 [30 April 2024]
TABLE OF CONTENTS
Background [3]
Paneke Pōneke (the Council’s bike network plan) [3]
Molesworth Street, Murphy Street, and New World Thorndon [7]
The Council’s decision-making powers and obligations relating to roads [12]
The Council [12]
The Council’s Traffic Bylaw [13]
The Council’s decision-making process regarding roads [15]
Judicial review of Council decisions under the Local Government Act [24]
Foodstuffs’ case [27]
Failure to consider relevant matters [27] Alternative reasonably practicable options [28]
Consideration of Foodstuffs’ views [30]
Failure to undertake adequate consultation [32]
Failure to accord natural justice [34]
Unreasonableness [35]
The Council’s response [37]
Issues for determination [40]
Review of the Council’s decision-making process [45]
Thorndon Connections Transitional Programme [46]
Multi Criteria Analysis [49]
ViaStrada’s 30 per cent design safety audit [52]
Initial consultation with New World Thorndon/Foodstuffs [55]
ViaStrada’s 90 per cent design safety audit [59] Public consultation, including with Foodstuffs, over “proposal” [60] Foodstuffs’ submission [63]
The Council’s traffic data [71]
Thorndon Connections hearing of public submissions [72]
Meeting of Regulatory Processes Committee on 11 May 2023 [74]
Did the Council’s decision-making over right-sided cycleways at
Thorndon New World comply with the Act? [83]
Did right-sided cycleways at Thorndon New World comply with the
Traffic Bylaw? [89]
Are right-sided cycleways at Thorndon New World unreasonable? [90]
Result [94]
[1] The New World Thorndon supermarket sits between Molesworth Street and Murphy Street. Foodstuffs North Island Limited is the ultimate owner of the leasehold interests in the site, and all of the improvements on the site.
[2] Foodstuffs applies for judicial review of the Wellington City Council’s decision to install cycleways on the sides of Molesworth Street and Murphy Street, immediately adjacent to the supermarket’s main vehicular access points. Foodstuffs says that the Council’s decision-making process did not involve consideration of appropriate alternative routes which would avoid conflict between cyclists and vehicles at those access points; that is, it says the Council should have considered installing the cycleways on the other side of each street where it passes the supermarket. Foodstuffs adds that the Council did not consult with it properly.
Background
Paneke Pōneke (the Council’s bike network plan)
[3] On 10 March 2022, the Council’s planning and environment committee, Pūroro Āmua, adopted its “bike network plan”, Paneke Pōneke. The purpose of the plan, described in an eponymous Council publication, was to set out the Council’s approach to creating a safe, connected and high-quality network of routes for biking and scooting.1 It was adopted following community consultation between 2 November and 14 December 2021, and oral submissions heard on 10 February 2022.
[4] Paneke Pōneke amounted to a network-wide traffic resolution, providing that particular sections of identified streets would have cycleways installed upon them, “using lower-cost materials that [could] be adjusted once they [were] in place”. Subsequent traffic resolutions would specify in more detail the particular street changes necessary for the installation of such cycleways. In this way, the Council could “install an interim bike network and gain feedback in real time”. These changes would “be monitored and evaluated, then adapted based on insights from data, observations and public feedback”. This would “inform future permanent changes while gaining benefits earlier”.2
1 Paneke Pōneke (Wellington City Council, March 2022) at 6.
2 At 54.
[5] Paneke Pōneke described Molesworth Street, from Lambton Quay to Tinakori Road, and Murphy Street, from Park Street to Pipitea Street, as street sections forming part of the Council’s planned bike network and upon which such cycleways would be installed.
[6] Foodstuffs does not take issue with the validity of this decision. Its challenge is to the decision to install the lanes on the side of the street closest to the supermarket’s vehicular access points.
Molesworth Street, Murphy Street, and New World Thorndon
[7] For most of their lengths, both Molesworth Street and Murphy Street in Thorndon, Wellington, are two-lane, one-way roads. They are depicted, although Murphy Street is not labelled, in the following diagram:
[8] Broadly speaking, traffic on Molesworth Street moves north. Traffic on Murphy Street moves south. At its northern end, Molesworth Street converges upon,
and becomes part of Murphy Street, at which point Murphy Street becomes a two-way road.
[9] As the diagram indicates, New World Thorndon sits between Molesworth Street and Murphy Street. To gain access from Molesworth Street, regular traffic does so by turning right from that road’s right lane. To gain access from Murphy Street, regular traffic does so by turning right from that road’s right lane.
[10] As the diagram further indicates, both Molesworth Street and Murphy Street connect with the Wellington Urban Motorway. An on-ramp diverges from Molesworth Street’s left lane a short distance beyond New World Thorndon. An off-ramp converges upon Murphy Street so as to form its left lane.
[11] May Street is the one-lane, one-way road connecting Molesworth Street and Murphy Street, to the north of Thorndon New World. Goods delivery vehicles, seeking access to the supermarket’s loading dock, gain such access by turning right into May Street from the eastern lane of Molesworth Street. Access to the loading dock is from May Street.
The Council’s decision-making powers and obligations relating to roads
The Council
[12] The Council is, in terms of s 5(1) of the Local Government Act 2002, a “territorial authority” and thus a “local authority”, it being listed in pt 2 of sch 2 of that Act, having been constituted under cl 100 of the Local Government (Wellington Region) Reorganisation Order 1989.
The Council’s Traffic Bylaw
[13] In light of its control of roads in its area, the Council is further regarded as a “road controlling authority” in terms of s 2 of the Land Transport Act 1998. Section 22AB of the Land Transport Act permits road controlling authorities to make bylaws for the purposes of, amongst other things, regulating any road-related matter. In August 2021, the Council made the Wellington City Council Traffic and Parking Bylaw 2021 (the Traffic Bylaw).
[14] Clause 7.1 of the Traffic Bylaw provides that the Council may, by resolution, impose restrictions upon Council-controlled road use, unless the restriction is already provided for in a relevant enactment.
The Council’s decision-making process regarding roads
[15] Clause 7.5 of the Traffic Bylaw sets out specific procedural requirements that apply when the Council is considering making a traffic resolution under cl 7.1. Clause 7.5 provides as follows:
Any resolution proposed under this Bylaw shall be placed on the Council’s website at least 14 days before the Council considers it. Any person may provide comments, in writing, on the proposed resolution and those comments will be considered by the Council before it makes a resolution. Any person who has made written comments may request to be heard by the Council and it is at the Council’s sole discretion whether to allow that request.
[16] And ss 76–82 of the Local Government Act set out a more general regime applying to the Council’s decision-making as a local authority. Section 76 provides as follows:
(1)Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable.
(2)Subsection (1) is subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79.
(3)A local authority—
(a)must ensure that, subject to subsection (2), its decision- making processes promote compliance with subsection (1); and
(b)in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.
[17] Under s 77(1), which is subject to s 79, a local authority must, “in the course of the decision-making process”:
(a)seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b)assess the options in terms of their advantages and disadvantages.
[18]Under s 78, headed “Community views in relation to decisions”:
(1)A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.
(2)[Repealed]
(3)A local authority is not required by this section alone to undertake any consultation process or procedure.
(4)This section is subject to section 79.
[19]And under s 79, headed “Compliance with procedures in relation to decisions”:
(1)It is the responsibility of a local authority to make, in its discretion, judgments—
(a)about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and
(b)about, in particular,—
(i)the extent to which different options are to be identified and assessed; and
(ii)the degree to which benefits and costs are to be quantified; and
(iii)the extent and detail of the information to be considered; and
(iv)the extent and nature of any written record to be kept of the manner in which it has complied with those sections.
(2)In making judgments under subsection (1), a local authority must have regard to the significance of all relevant matters and, in addition, to—
(a)the principles set out in section 14; and
(b)the extent of the local authority’s resources; and
(c)the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.
(3)The nature and circumstances of a decision referred to in subsection (2)(c) include the extent to which the requirements for such decision- making are prescribed in or under any other enactment (for example, the Resource Management Act 1991).
(4)Subsection (3) is for the avoidance of doubt.
[20] In this way, the Council is permitted under s 79 a degree of discretion as to how to achieve compliance with its obligations under s 77, to identify and assess options, and under s 78, to give consideration to the views of affected or interested persons. The breadth of that discretion varies with the significance of the decision, the principles governing the conduct of local authorities set out in s 14, the extent of the Council’s resources, and the nature and circumstances of the decision.
[21] Section 82 sets out various principles, in accordance with which local authority consultation must be undertaken.
[22]The Court of Appeal in Wellington City Council v Minotaur Custodians Ltd
described the relationship between ss 76, 78, 79 and 82 this way:3
[33] Relevantly, for present purposes, subs (1) and (2) [of s 76] provide that consultation decisions must be made in accordance with ss 78 and 82, subject, in the case of compliance with section 78, to the ameliorating effect of s 79. Subsection (3) sets two standards of performance. In respect of “significant decisions”, the local authority must ensure that the provisions contained in subs (1) have been “appropriately observed”. This is the higher of the two standards. Where the matter is not “significant”, the standard is more aspirational: decision-making is only required to “promote compliance” with the provisions referred to in subs (1). Even that lower standard is subject to s 79 as noted. …
[23] Addressing the question whether ss 76, 78 and 79 therefore give rise to a duty to consult, the Court in Minotaur summarised the position as follows:
[42] In summary, pt 6 of the LGA carefully and repeatedly rejects the idea that there is to be found in its provisions any duty to consult with affected or interested parties. Instead, local authorities are given a deliberately broad discretion as to whether to consult, and, if so, how. That does not mean, however, that there are no limits on a council’s discretion. Like all statutory decisions, consultation decisions must be rational and consistent with the objects of the LGA and the particular controlling provisions. …
3Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 (emphasis added).
Judicial review of Council decisions under the Local Government Act
[24] The exercise, or proposed or purported exercise, of a statutory power is subject to judicial review.4 The Court may intervene upon judicial review where it finds illegality, irrationality (in the sense of conduct so unreasonable or irrational that Parliament would not have intended that it be authorised), or procedural impropriety.5
[25] Foodstuffs’ case focusses (although not exclusively) upon the third of these grounds, and therefore cl 7.5 of the Traffic Bylaw and ss 76 to 79 of the Local Government Act. Drawing in aid the last sentence of [42] of Minotaur cited at [23] above, it submits that notwithstanding the Council’s discretion as to how it conducts its decision-making processes, it must still act rationally and in a way that is consistent with the objectives of the Local Government Act.
[26] I accept that submission. It is consistent with the observation of the Court of Appeal in Whakatane District Council v Bay of Plenty Regional Council that the courts will not interfere with a discretionary judgement under s 79 unless it is irrational or made on a wrong legal principle.6
Foodstuffs’ case
Failure to consider relevant matters
[27] In advancing its first two causes of action, Foodstuffs says that the Council failed to consider two relevant matters:
(a)alternative reasonably practicable options for the cycleways which would have them installed on the opposite side of each road to the supermarket’s vehicular access points on Molesworth Street and Murphy Street; and
(b)Foodstuffs’ views.
4 Judicial Review Procedure Act 2016, s 3(1).
5Island Bay Residents' Association v Wellington City Council [2019] NZHC 1240, [2020] NZRMA 157 at [57].
6Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 at [76].
Alternative reasonably practicable options
[28] Foodstuffs acknowledges that Council officers and consultants were engaged to formulate a design of the cycleways, which was then the subject of public consultation and the hearing of submissions, before formal adoption of a traffic resolution under the Traffic Bylaw. It submits that:
(a)when designing the cycleways, the Council did not: have reliable and current traffic count data for vehicle movements in and out of the supermarket; consider the potential hazard created by installing cycleways across its vehicular access points; or consider the option of cycleways on the roads’ other sides, and assess the advantages and disadvantages of that option; and
(b)when approving the cycleways’ design by way of formal resolution, the Council did not take account of: the high number of vehicle movements in and out of the supermarket; other options available to deal with potential conflict with motorway on- and off-ramps; the common need for cycleways to coexist with bus stops; the temporary nature of a construction zone on the left side of Molesworth Street; the risk of conflict between cars turning into and out of the supermarket and cyclists; and thus the possibility of left-side cycleways better achieving Paneke Pōneke’s objectives.
[29] On this basis, Foodstuffs submits that the Council’s decision-making process breached s 77 of the Local Government Act.
Consideration of Foodstuffs’ views
[30] Foodstuffs further submits that there were consulting deficiencies in the Council’s efforts to consult with Foodstuffs relating to the cycleways. Foodstuffs’ clear opposition was not clearly or accurately summarised in material provided to the
Council committee that made the formal resolution adopting the cycleway design. Further, the committee’s resolution did not give consideration to:
(a)the option of left-side cycleways in the vicinity of the supermarket;
(b)the negative impact of right-side cycleways in that vicinity upon the supermarket’s existing and potentially re-shaped future access points; and
(c)the high number of vehicle movements in and out of the supermarket which, in combination with right-side cycleways, would create a significant safety issue.
[31] On this basis, Foodstuffs submits that the Council’s decision-making process breached s 78 of the Local Government Act and cl 7.5 of the Traffic Bylaw.
Failure to undertake adequate consultation
[32] Foodstuffs submits that the consultation undertaken was not meaningful. It did not contemplate installation of left-side cycleways in the vicinity of the supermarket’s vehicular access points. Council officers refused to provide a copy of the design as at
7 December 2022 when meeting Foodstuffs’ representatives. And, Foodstuffs’ submissions were not presented appropriately to the Council committee that made the formal resolution.
[33] On this basis, Foodstuffs’ third cause of action is that the Council’s decision-making process breached s 82 of the Local Government Act, and cl 7.5 of the Traffic Bylaw.
Failure to accord natural justice
[34] Foodstuffs was permitted five minutes in which it was required to present its views during the hearing of public submissions by the Council’s Regulatory Processes Committee on 20, 21 and 24 April 2023. Its fourth cause of action is that this,
combined with formal adoption of the resolution, amounted to a failure by the Council to accord Foodstuffs natural justice.
Unreasonableness
[35] Foodstuffs’ fifth cause of action is a more substantive, rather than procedural, objection. It is based on the proposition that the Council’s decision was “unreasonable” in the Wednesbury sense; that is, it was so unreasonable that no reasonable authority could have come to it.7
[36] Foodstuffs submits that the Council did not have evidence of the number of vehicle movements in and out of the supermarket’s access points, or the number of heavy vehicles using the May Street access point. In light of this, and the matters at [28](b)] above, the Council’s decision was unreasonable because it was not supported by evidence.
The Council’s response
[37] The Council says that its decision-making process was not flawed in a manner justifying judicial review. It submits that:
(a)any design which involved a left-side cycleway on Molesworth Street crossing a motorway on-ramp was discarded as unsafe, and for that reason, did not meet the Council’s objective;
(b)any design which required a left-side cycleway on Murphy Street to interact with bus stops in front of Wellington Girls College was similarly discarded; and
(c)accordingly, the Council was not legally obliged to identify and assess such designs.
7 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.
[38] The Council adds that it could assume that the number of vehicles accessing the supermarket via Molesworth Street and Murphy Street was less than the number not doing so, and in particular, that the number using the Molesworth Street access point was less than the number using the motorway on-ramp on the opposite side of that road. And that this, in combination with the lower speeds of vehicles entering the supermarket rather than the motorway on-ramp, supports its submission at [37](c)] above.
[39] The Council further submits that its decision was made after an adequate consultative process, afforded natural justice to parties including Foodstuffs, and was reasonable “by any definition, let alone in the Wednesbury sense”.
Issues for determination
[40]The issues for determination can now be stated.
[41] First, the Court is required to consider whether the decision-making process by which the decision was reached to install cycleways on the right side of Molesworth Street and Murphy Street in the vicinity of Thorndon New World, rather than the left, complied with cl 7.5 of the Traffic Bylaw and ss 76–82 of the Local Government Act. In doing so, the Court must respect the Council’s discretion as to how it conducts its decision-making processes, bounded as that discretion is by the requirement that the Council must act rationally and in a way that is consistent with the objectives of the Local Government Act. The focus here is upon whether Foodstuffs has established that the Council’s decision-making did not:
(a)adequately seek to identify and assess the option of installing left-side cycleways in the supermarket’s vicinity, as required by s 77 (subject to s 79);
(b)sufficiently give consideration to Foodstuffs’ views, as required by s 78 (subject to s 79);
(c)consult properly with Foodstuffs, and in accordance with s 82; or
(d)afford Foodstuffs its entitlements under cl 7.5 of the Traffic Bylaw.
[42] And second, the Court must determine whether the decision was one to which no reasonable local authority could have come.
[43] I will determine these issues upon review of the Council’s entire decision-making process, undertaken chronologically. The formal traffic resolution at issue in this case was not only a resolution to install cycleways in specific locations affecting Foodstuffs. It was a resolution, for the most part, adopting a highly detailed, draft design affecting several city roads along their entire length. The Council’s Regulatory Processes Committee could not realistically undertake its own design process. The design had to be initiated by a Council decision to install cycleways upon particular roads forming part of its bike network, and then substantially developed, including in light of an appropriate degree of public consultation, so as to be capable of appropriately informed and efficient decision-making. If the committee decided to adopt the recommended design, it necessarily was required to rely upon a multitude of prior design decisions and instances of community engagement and feedback. In my view, adoption of the traffic resolution at issue in this case should not be seen as a discrete “decision” that is susceptible of judicial review independently of the larger set of choices made on the part of the Council which culminated in the resolution.
[44] The Local Government Act recognises that the immediate setting in which a proposal is formally adopted by a local authority should not be regarded as the point when procedural compliance is assessed. The provisions of the Act in accordance with which, under s 76, local authority decisions “must be made” are provisions that require a local authority to act in specified ways “in the course of the decision-making process”.
Review of the Council’s decision-making process
[45] The Council’s decision to adopt Paneke Pōneke, its bike network plan, is outlined at [3]–[5] above. As indicated above, I consider this forms a substantial part of the decision-making relevant to this case.
Thorndon Connections Transitional Programme
[46] Having adopted Paneke Pōneke, the Council commenced what it described as its Transitional Cycleways Programme. The Council had also adopted a “bus priority action plan”. This led it to describe its project to implement its bike network and bus priority plans in the Thorndon area under the more general description of the Thorndon Connections Transitional Programme. In line with Paneke Pōneke, the programme called for the more detailed design and installation of cycleways on Molesworth Street and Murphy Street.
[47] On 22 April 2022, the Council’s chief planning officer, Liam Hodgetts, approved a “draft initial project brief” of the Thorndon Connections Transitional Programme. This initial project brief had been presented to Mr Hodgetts for approval by Renee Corlett. Ms Corlett was a Council employee described as the programme’s “Project Lead”.
[48] The initial project brief specified the use of “interim installations” amounting to a “first cut” of the cycleways, and also an intention to incorporate improvements to the bus network, identified in the Council’s recent bus priority action plan. It further assumed that a “transformational approach” would be delivered not long after the transitional programme, “so major changes to traffic signals may be deferred until permanent improvements [are made]”. New World Thorndon was identified as one of a list of “key stakeholders”.
Multi Criteria Analysis
[49] The more detailed design process relating to Molesworth Street and Murphy Street is captured, at least to some extent, in a document titled “WCC Transitional Cycleways Multi Criteria Analysis Molesworth-Mulgrave”. It is dated 14 December 2022, but appears to have been compiled by way of successive drafts. The first draft was formally approved on 17 June 2022, by Christopher Groom.
[50] Mr Groom is a principal transport planner, employed at an engineering and professional services firm. Since September 2021, he has been commissioned by the Council to take a leading design role within the Transitional Cycleways Programme.
[51] The 14 December 2022 version of the Multi Criteria Analysis records that a so-called “longlist assessment” had been undertaken relating to the side of the road upon which cycleways should be installed. It states:
The right side was chosen as the preferred location for the following reasons:
·Avoided conflicts with high-volume / high-speed motorway on/off ramps
·Avoided conflicts with bus stops (safety implications for waiting pedestrians and bus / cycle interactions)
·Provided improved cycle connectivity between Molesworth Street and Murphy / Mulgrave Streets (via connecting side streets such as Pipitea Street) and better connectivity to Bunny Street.
ViaStrada’s 30 per cent design safety audit
[52] It appears, however, that this choice of the right side of Molesworth Street and Murphy Street had, at least for the purpose of design development, been made by 19 October 2022, when a 30 per cent general alignment design was, according to Mr Groom, provided to the Council “for review”.
[53] At that stage, ViaStrada Limited, another transportation consultancy, was instructed to complete a safety and accessibility audit of the Council’s 30 per cent design. Its audit report, dated November 2022, was signed by: Mr Groom as “designer”, Dennis Davis as “Safety Engineer”, Brad Singh as “Manager – Transport & Infrastructure” for the “Client” (the Council), and Ms Corlett as “Project lead”. Amongst a number of safety issues dealt with in detail, the report raised two of relevance, relating to Murphy Street:
(a)The first safety issue arose in light of the low angle between May Street and Murphy Street at the point of their intersection, and the need for drivers to look back to see cyclists approaching on a cycleway designed to occupy the right side of Murphy Street. The “audit team” recommended a cycleway and pedestrian raised platform across May Street, or a painted island or mountable kerb extension to square up the intersection.
The audit report records that Mr Groom’s response as designer was to agree to add a painted or mountable curve extension, and to re-mark the proposed cycleway’s limit line. But Mr Groom suggested that a raised platform was not preferred because the “transitional cycleways approach is to avoid civil works where possible. Will investigate possibility of using a temporary speed hump or cushion to slow vehicle speeds.”
Mr Davis, as safety engineer, agreed with the audit team’s recommendation and Mr Groom’s response, further suggesting more conspicuous marking treatment of the cycleway across May Street. ViaStrada proposed an update in Mr Groom’s 90 per cent design. Mr Singh for the client accepted this proposal.
(b)The second safety issue related to the design requiring cyclists in a shared lane at the northern end of Murphy Street to transition into the cycleway on the right side of that road. Mr Groom agreed to investigate the addition of road marking to direct cyclists to the right-side cycleway.
[54] No safety issues were raised in respect of the cycleway planned for Molesworth Street in the vicinity of New World Thorndon.
Initial consultation with New World Thorndon/Foodstuffs
[55] Through Bri Peters, a Council “engagement specialist”, the Council approached the supermarket’s operator, Paul Gilbert, by email dated 11 November 2022, seeking to “go through the route and our initial designs with you, to hear how you experience the route at present, and any important considerations we should be thinking about when looking at the reallocation of road space”.
[56] Foodstuff’s senior development manager, David Boersen, responded by email dated 25 November 2022, indicating its “very strong interest in this project”.
[57] On 7 December 2022, Ms Corlett met Mr Gilbert and Mr Boersen to discuss the project. Her email of 20 December 2022 summarises the range of concerns that Mr Gilbert and Mr Boersen raised. The primary concern was that the Council’s initial design was for cycleways “against the [supermarket’s] car park entrances on both sides”. Ms Corlett’s email records that she “explained the right hand side of the road was selected, partly to avoid the cycleway crossing motorway on/off-ramps which would not only have a greater network impact, but had significant safety concerns and connectivity issues. Our Multi Criteria Analysis is attached.”
[58] Ms Corlett’s email further contained her request that Foodstuffs provide traffic volumes and movements data relating to its vehicular entrances “if you are still happy to share this information with us”.
ViaStrada’s 90 per cent design safety audit
[59] Again according to Mr Groom, a 90 per cent design was completed by 9 December 2022. ViaStrada then completed a further safety and accessibility audit of this design. A number of safety issues remained outstanding, but not those outlined at [53] above.
Public consultation, including with Foodstuffs, over “proposal”
[60] The Council circulated a flyer to local businesses and other organisations notifying them of the opportunity to provide feedback in the period 6 March to 27 March 2023. Whether by means of this flyer or separately — the evidence is not clear — the Council also published a 46-page “proposal”, describing in detail the “Thorndon Connections” changes it was proposing to make in respect of Tinakori Road, Hill Street, Molesworth Street, Murphy Street, Mulgrave Street, Bunny Street, Aitken Street, Stout Street, Pipitea Street and Lambton Quay, including by way of overhead design drawings. On Molesworth Street, the proposed changes were to:
• Install a separated bi-directional cycleway for 182 meters on the eastern side between the intersections of Lambton Quay and Aitken Street replacing one general traffic lane and removing 19 P$ metered parking spaces.
• Install a separated uni-directional cycleway for 443 meters on the eastern side of Molesworth Street heading north from the intersection of Aitken Street to no.186 Molesworth Street removing 47 P$ metered parking spaces, one mobility park and 11 metres of motorbike parking.
• Install a separated uni-directional cycleway for 55 meters on the western side of Molesworth Street from no.186 Molesworth Street to the State Highway 1 overbridge.
• Remove bus stop #5112 Molesworth Street at Wellington Cathedral of St Paul.
• Remove bus stop #5114 Molesworth Street at SHl Motorway overbridge
• Remove one metered parking space outside no.127 Molesworth Street to extend the motorbike parking to 10 metres.
• Replace two metered parking spaces outside no.83 Molesworth Street with car share spaces.
• Install one new metered P120 mobility park outside Parliament on the west side of the road opposite no.42 Molesworth Street removing two angled P$ metered parking spaces.
• Install two new taxi stand spaces outside no.127 Molesworth Street removing two metered parking spaces.
• Install a new cycle crossing next to the existing pedestrian crossing outside no.186 Molesworth Street.
[61]On Murphy Street, the proposed changes were to:
• Install a separated uni-directional cycleway for 95 meters on the eastern side of Murphy Street heading south from the intersection of Tinakori road to the pedestrian crossing at the end of the State Highway 1 overbridge.
• Install a separated uni-directional cycleway for 271 meters on the western side of Murphy Street heading south from opposite no.68 Murphy Street to the intersection of Pipitea Street.
• Remove 10 P$ metered parking spaces on the eastern side of Murphy Street between Halswell Street and Turnbull Street replacing with 57 metres of broken yellow lines (No Stopping).
• Remove three P$ metered parking spaces on the eastern side of Murphy Street between Turnbull Street and the signalised crossing replacing with 16 metres of broken yellow lines (No Stopping).
• Install a give way control on Halswell Street at the intersection of Murphy Street.
• Install four new Pl0 pick up and drop parking spaces 8:30am-9:30am and 2:30pm-3:30pm Monday- Friday during the period when the Thorndon Pool is closed only.
[62] The overhead design drawings published “for consultation” are annexed to this judgment.
Foodstuffs’ submission
[63] Foodstuffs’ solicitor emailed its submission on 24 March 2023, requesting an opportunity to present the submission at the public hearing of submissions, and also a separate meeting with Council staff.
[64] Foodstuffs’ submission described itself as “made in opposition to the poorly thought-out proposed changes [of] the Thorndon Connections Project”. Opposing the right-side Molesworth Street cycleway, it asserted amongst other things that:
(a)that access point was likely the busiest crossing on Molesworth Street, and asked for Council traffic count information;
(b)it would create a safety risk, with vehicles exiting the supermarket likely to nudge forward into the cycleway to assist their movement into traffic on Molesworth Street; and
(c)it would compromise its plan to separate the access point’s entry and exit lanes, to allow entry to the supermarket’s car park at its southern end and exit at its northern end.
[65] Foodstuffs’ submission proposed a pedestrian/cycle crossing of Molesworth Street, sited to the south of the supermarket, from which point the cycleway would proceed north on the left side of Molesworth Street. It added that “[i]t does not appear that moving the cycle lane to the left-hand side of the road earlier on Molesworth Street to avoid the hazard/conflict at the NW Thorndon site was a matter considered in Council’s Multi-Factor Criteria Analysis”. In this respect, the submission was wrong. As indicated at [51], the analysis specifically referred to the choice of the right side because it would avoid conflict with “high-volume/high-speed
motorway on/off ramps” and for that reason appeared to contemplate and reject a left-sided cycleway such as that Foodstuffs was proposing.
[66] I interpolate here my view that Council officers and engaged experts were entitled to respond to Foodstuffs’ assertions when briefing the ultimate decision-making Council body, as outlined below. And that an appropriate response was to contribute to “assessment” of Foodstuffs’ arguments, consistently with s 77 of the Act, by pointing out that in fact the “likely busiest crossing on Molesworth Street” is the motorway on-ramp, which given higher traffic speeds and the out-of-scope nature of a relatively expensive, raised pedestrian crossing of a non-Council, New Zealand Transport Agency-administered, on-ramp, might be discounted.
[67]Opposing the right-side Murphy Street cycleway, Foodstuffs’ submission:
(a)referred to Murphy Street’s “quite high traffic volumes”, and asserted that the supermarket’s access point is “highly utilised”;
(b)similarly asserted that drivers would nudge forward into the cycleway when exiting; and
(c)again referred to potential compromise of Foodstuffs ability to change the layout of the Murphy Street access point should it choose.
[68] Foodstuffs’ submission proposed a left-side cycleway on Murphy Street in the vicinity of the supermarket.
[69] Again, I interpolate my view that Council officers and engaged experts were entitled to respond, including by referring to the likely greater proportion of traffic using Murphy Street to travel to destinations other than the supermarket, and the need to avoid the school bus stops on the left side of that road, as outlined below.
[70] Claire Pascoe, employed by the Council as its Transitional Programme Manager, and other staff met Foodstuffs personnel and its solicitor on 17 April 2023. Again, Council staff requested Foodstuffs’ traffic count data.
The Council’s traffic data
[71] The Council obtained its own limited set of traffic data, comparing the number of vehicles using the motorway on-ramp from Molesworth Street during periods in March and April 2023, against the number of vehicles using the supermarket’s access points from Molesworth Street and Murphy Street during periods in March 2023. This limited data indicated many more vehicles used the on-ramp.
Thorndon Connections hearing of public submissions
[72] The Council’s Regulatory Processes Committee publicly heard 109 oral submissions in respect of both the Thorndon Connections project and the Kilbirnie Connections project at a meeting held for that purpose on 20, 21 and 24 April 2023. Speakers, including Foodstuffs, were allotted five minutes each to speak to each project in which they were interested.
[73] The agenda paper for the meeting advised committee members that decisions on both the Thorndon and Kilbirnie projects’ traffic resolutions were scheduled for consideration at the committee’s meeting on 11 May 2023.
Meeting of Regulatory Processes Committee on 11 May 2023
[74] The committee met on 11 May 2023 as scheduled. Its agenda included a number of matters in addition to consideration of the Thorndon and Kilbirnie Connections projects.
[75] The agenda paper for this meeting was accordingly comprised of numerous, detailed documents. These included a “report to [the committee] recommend[ing] the adoption of a traffic resolution to enable the installation of the Thorndon Connections walk, bike and bus improvements, as part of the accelerated delivery of Paneke Pōneke, the Wellington Bike Network Plan, which was adopted by [the] council in March 2022”. The report had been authored by Ms Pascoe as the Council’s Transitional Programme Manager and the project’s new Project Lead (replacing Ms Corlett), and authorised by the Council’s Manager City Design and Mr Hodgetts as its Chief Planning Officer.
[76] The report confirmed that the decision was rated, in terms of the Council’s “significance and engagement policy” adopted for the purpose of complying with s 76AA of the Local Government Act mentioned at [19] above, as a decision of “medium significance”.
[77] The report contained the authors’ recommendation of a formal seven-point motion, including that, amongst other things, the committee should:
(a)note the summary of public submissions that had been made, and the authors’ responses to feedback, set out in documents attached to the report;
(b)agree to make specific changes to the Council’s consultation proposal (described above); and
(c)adopt the proposal, now treated as a draft traffic resolution, once those changes were incorporated.
[78]And the report observed that:
The proposed designs were developed by technical experts with input from public engagement. Following consultation, additional design changes have been incorporated and while not providing a perfect solution, the updated proposal is considered a significant improvement on the existing situation, aligning with Council strategic objectives and can be delivered in a short time frame.
…Submitters opposed to the proposal were mostly concerned about the removal of on-street parking, the two-way bike lane on Molesworth Street that required Kate Sheppard place to become one-way for vehicles and the bike lane being located on the right hand side of Molesworth Street, crossing the New World driveway.
…
Concerns were raised regarding the separated bike lane being placed on the right hand sides of Molesworth Street and Murphy/Mulgrave Streets, particularly regarding the conflict at the New World driveways. The right hand side of the road was preferred based on an analysis of conflicting movements occurring on the left side of the road, particularly at the motorway on and off ramps where higher traffic volumes turning at higher speeds creates a significant safety risk that is unable to be managed using a quick build approach. In addition to the motorway on and off ramp conflicts, the right hand side of the road was also preferred to avoid bus stop conflicts, a construction zone at 61 Molesworth Street and so as to retain as much parking as possible.
[79] The attached summary of submissions referred to Foodstuffs’ submission, under the heading “Thorndon – opposing”, as follows:
• Perception that there has been no proper traffic analysis around the Thorndon New World and lack of proper consideration of alternative options.
• Concern about access to the New World as it is so busy, on both sides (Mulgrave/Murphy).
• Safety concerns with the New World section and that the proposal puts cyclists in this conflict.
and under the heading “Thorndon – neutral”, as follows:
• Suggestion to have the bike lane moved to the left side of Molesworth Street. If this is not done, then there may be legal action from Foodstuffs.
[80] The attached authors’ responses to feedback addressed 140 “themes” and items of “design feedback”, including Foodstuffs’ feedback, as follows:
| Ensure New World exit/entry is safe for cyclists | We recognise this is an area of concern and a busy driveway, and are proposing to install a range of measures to improve safety and slow down the vehicle movements in and out of the New World car park. This will include green road marking treatment over the driveways to raise visibility of the bike lane. We will also install speed humps to slow down vehicles entering and exiting the driveways. We will continue to monitor the driveway conflict and investigate further safety measures if required. |
| Put Molesworth Street cycleway on other side of road to avoid New World entry/exit | The rationale for the right-hand-side of the road was based on the analysis of conflicting movements occurring on the left. These included the motorway on and off ramps, and the high speeds due to the angle of the ramps and volumes of traffic, creating a high safety risk that would require significant civil work to make safe. We recognise the right side of the road also has conflicting movements with people concerned mainly about the New World car park, however this is less of a safety risk with the angle of the driveway resulting in slower vehicle speeds making this movement, and also lower volumes. The left-hand-side of the road also has multiple bus stops, a construction loading zone for a new development at 61 Molesworth Street and indented parking for visitors to the area. |
[81]The minutes of the committee meeting on 11 May 2023 record that:
(a)A councillor moved an amended version of the seven-point motion that the report’s authors had recommended. The amendment proposed to defer consideration of the cycleway on Molesworth Street. While that motion was under consideration:
(i)Another councillor moved to defer approval of the Thorndon cycleways until the next Council meeting. That motion was voted upon and lost.
(ii)The Mayor of Wellington moved that Council officers be instructed: to report back on the cycleways within six months; to engage with Foodstuffs on additional potential changes; and to investigate further options to improve pedestrian safety and accessibility to businesses across Molesworth Street. That motion was carried.
(b)The amended motion mentioned at [81(a)] was then put, having been supplemented by the carried motion at [81(a)(ii)], and carried but for the councillor’s proposal to defer consideration of the Molesworth Street cycleway.
[82] The result was that the proposed seven-point motion of the report’s authors was carried, including for installation of the cycleways as designed and the subject of the public consultation document described at [60] above, as set out in the overhead design drawings annexed to this judgment, together with a supplementary motion for ongoing review and engagement with Foodstuffs.
Did the Council’s decision-making over right-sided cycleways at Thorndon New World comply with the Act?
[83] In light of my observations on this review, I find that the Council’s decision-making process by which the decision was reached to install cycleways on
the right sides of Molesworth Street and Murphy Street in the vicinity of Thorndon New World, rather than the left, complied with ss 76–82 of the Local Government Act.
[84] First, it should be recalled that the Council’s unchallenged decision to adopt its bike network plan, Paneke Pōneke, required it to undertake a program of work, settling upon the design of “interim” cycleways on identified roads, for installation using “lower-cost” materials prior to changes being made permanent upon monitoring and evaluation. The Council’s next step in the decision-making process was to develop detailed, professional designs of proposed cycleways for installation on those identified roads, and to undertake a process of public consultation of those draft designs. I consider it appropriate and, more relevantly, consistent with the Council’s discretion under s 79 of the Act to make judgments about how to achieve compliance with ss 77 and 78, that it did so. A procedure that commenced with consultation upon the issue of placement of cycleways would have been too open-ended and prone to inefficiency and delay.
[85] Next, I consider the selection of the right sides of Molesworth Street and Murphy Street as the designer’s preferred side, and the subject of design drawings for consultation, similarly to be consistent with the Council’s obligations under s 77(1), as moderated by s 79. The basis upon which this selection was made was recorded in the Multi Criteria Analysis as set out at [51] above, which was provided to Foodstuffs during the initial phase of direct consultation. I consider the Council was entitled, at this stage of the process, to “identify and assess” the option of left-sided cycleways to this limited extent only, in accordance with s 79(1)(b)(i). That the number of vehicles entering the motorway at Molesworth Street, and exiting at Murphy Street, would generally exceed those turning right into the supermarket could in my view properly be assumed. Even now, there is an absence of evidence to the contrary. And in any event, the safety concerns arising from left-side cycleways, identified in the Multi Criteria Analysis, relating to higher-speed traffic making a lower-angled left turn from Molesworth Street and conflicts with traffic coming from the motorway and bus stops on Murphy Street, were reasonably viewed as taking priority even in the absence of traffic volume data. Foodstuffs’ proposal for the installation of a raised crossing on the Molesworth Street motorway on-ramp could appropriately be rejected, given Paneke Pōneke, as outside the transitional project’s scope.
[86] Further, in my view the Council undertook an appropriately targeted and responsive programme of consultation, including specifically with Foodstuffs. The designs provided to Foodstuffs were sufficiently detailed so as to provide transparent notice of the prospect of right-sided cycleways. Foodstuffs’ objections clearly registered with and were considered by the Council officer team engaged in implementing Paneke Pōneke: they wrote about those objections when drafting their report to the Regulatory Processes Committee and attached papers. That the report described Foodstuffs’ objections as “concerns” is of little significance. The more important point is that the substance of Foodstuffs’ argument against right-sided cycleways was grappled with, both by the officers and in their report to the committee being asked to approve their draft resolution.
[87] The essence of Foodstuffs’ complaint in this area is that it does not agree with the Council officers’ substantive assessment, recorded in their report for the committee in response to Foodstuffs’ view. As indicated above, I consider it entirely consistent with the Council’s discretion under s 79 of the Act, that this assessment formed part of the report and in this way contributed to the decision-making process.
[88] Finally, it is clear that the Regulatory Processes Committee, to the limited extent realistically possible given the detailed nature of the proposal it was being asked to approve, undertook its own evaluation of whether the proposed traffic resolution was an appropriate response to the Council’s objectives as determined by Paneke Pōneke. It took the view that it was, but further, and in line with the transitional nature of the process envisaged by that plan, it resolved that the process of monitoring and evaluating the cycleways being approved should specifically be the subject of Council resolution so as to guarantee future review. This too, I consider an appropriate exercise of the s 79 discretion, responsive to the nature and significance of the decision-making process in which the committee was engaged.
Did right-sided cycleways at Thorndon New World comply with the Traffic Bylaw?
[89] I find similarly that the Council’s decision-making process complied with cl 7.5 of the Traffic Bylaw. Foodstuffs provided written comments in respect of the proposed resolution, which were considered before the Council made the resolution.
The Council was not required to permit Foodstuffs to make oral submissions at a hearing. It did so, albeit Foodstuffs was limited to five minutes in which those comments were presented. Plainly, Foodstuffs’ submissions were taken into account, given the Council officers’ summary of submissions and responses documents. It is likely they motivated at least a significant part of the Mayor’s supplementary motion, given her reference to further engagement with Foodstuffs.
Are right-sided cycleways at Thorndon New World unreasonable?8
[90]As Wild J observed in Wolf v Minister of Immigration:9
[47] I consider the time has come to state — or really to clarify — that the tests as laid down in GCHQ and Woolworths respectively are not, or should no longer be, the invariable or universal tests of “unreasonableness” applied in New Zealand public law. Whether a reviewing Court considers a decision reasonable and therefore lawful, or unreasonable and therefore unlawful and invalid, depends on the nature of the decision: upon who made it; by what process; what the decision involves (ie its subject matter and the level of policy content in it) and the importance of the decision to those affected by it, in terms of its potential impact upon, or consequences for, them. This is a rather long-winded way of saying, as Lord Steyn so succinctly did in Daly:
In administrative law context is everything.
[91] In the present case, as outlined above, the context required the Council to select one side of Molesworth Street and Murphy Street, subject to any serious, emerging safety concern that might prevent the use of both sides. And it envisaged a transitional solution upon which further consultation, monitoring and evaluation would be undertaken prior to the cycleways becoming permanent.
[92] Both parties called expert evidence on the question whether right-sided cycleways in the vicinity of the supermarket’s vehicular access points were safe, and otherwise appropriate, compared to left-sided cycleways.
8 In the Wednesbury sense.
9Wolf v Minister of Immigration [2004] NZAR 414 (HC), referring to Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA); and R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532 (HL), later applied in Quake Outcasts v Minister of Canterbury Earthquake Recovery [2017] NZCA 332, [2017] 3 NZLR 486 at [73] and C P Group Ltd v Auckland Council [2021] NZCA 587 at [134].
[93] Having considered that material, I do not regard it as exposing irrational views on either side. In the context of judicial review proceedings, it does not require further discussion, except to say that in my view the Council’s right-side choice was very far from being a decision that no reasonable local authority could have reached.
Result
[94] For the above reasons, none of Foodstuffs’ causes of action are made out. Its application for judicial review by way of declaratory orders is dismissed.
[95] The Council appears entitled to costs on a 2B basis. If the parties cannot agree on costs, the Council is to file and serve a memorandum no more than seven pages long within 20 working days of this judgment, with Foodstuffs to respond by way of a similar memorandum filed within a further 15 working days.
Johnstone J
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