Living Streets Aotearoa Incorporated v Auckland Council
[2022] NZHC 2500
•3 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1598
[2022] NZHC 2500
BETWEEN LIVING STREETS AOTEAROA INCORPORATED
ApplicantAND
AUCKLAND COUNCIL
First Respondent
WAKA KOTAHI NEW ZEALAND TRANSPORT AGENCY
Second Respondent
NEURON MOBILITY (NEW ZEALAND ) LIMITED, BEAM MOBILITY NEW
ZEALAND LIMITED, LIME TECHNOLOGY LIMITED
Intervenors
Hearing: 19-20 September 2022 Appearances:
C P Browne and A D Young for Applicant
T D Smith and R L Goss for Second Respondent
N J Scampion and J M Alexander for Neuron Mobility (NZ) Ltd B S Carruthers for Beam Mobility NZ Ltd
K M Wilson for Lime Technology Ltd
Judgment:
3 October 2022
JUDGMENT OF LANG J
[on application for judicial review]
This judgment was delivered by me on 3 October 2022 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
LIVING STREETS AOTEAROA INC v AUCKLAND COUNCIL [2022] NZHC 2500 [3 October 2022]
[1] Electric scooters, commonly known as e-scooters, are now a familiar sight in many cities around the world. In Auckland they are predominantly ridden by persons who have hired them from entities licensed by Auckland Council. However, some are ridden by persons who have purchased devices for their own use.
[2] It is not necessary for e-scooters to be registered or for those who ride them to hold a current driver’s licence. This is because e-scooters ceased to be classified as motor vehicles for registration and licensing purposes in 2018.
[3] The applicant, Living Streets Aotearoa Limited (Living Streets), seeks judicial review of the decision that led to this outcome. It says that the Waka Kotahi New Zealand Transport Agency (Waka Kotahi), the Government agency responsible for making the decision, erred procedurally in doing so and that its decision should be set aside. In addition, Living Streets also asks the Court to make declarations regarding the legality of e-scooters currently being used in the city of Auckland.
[4] Living Streets also originally challenged the process by which the first respondent. Auckland Council, granted licences to the commercial entities who hire e- scooters to the public. However, it discontinued its claim against the Council shortly before the trial began.
The parties
[5] Living Streets is an incorporated society under the Incorporated Societies Act 1908 and a charitable entity under the Charities Act 2005. It was established to promote the social and health benefits of pedestrian friendly communities. Living Streets has been a long-standing advocate for the interests of pedestrians in the Auckland urban environment. It has strong links to the disabled community, and has particular concern for people with special mobility needs.
[6] Waka Kotahi is a statutory Crown entity established under s 93 of the Land Transport Management Act 2003 (LTMA). Its objective is to undertake its functions in a way that contributes to an effective, efficient and safe land transport system in the
public interest.1 It has a wide range of powers under s 95 of the LTMA. These include the power to contribute to establishing, implementing, operating, delivering, monitoring and enforcing the regulation of the land transport system in New Zealand.2
[7] Beam Mobility New Zealand Limited, Lime Technology Limited and Neuron Mobility (New Zealand) Limited (the Interveners) are all commercial entities who hold licences to hire out e-scooters in the Auckland urban area. They have been granted leave to intervene in this proceeding because their interests are potentially affected by the challenge that Living Streets advances in this proceeding.
Statutory framework
Land Transport Act 1998
[8] The present proceeding concerns a challenge to a decision made pursuant to s 168A(2) of the Land Transport Act 1998 (the LTA) to issue the E-Scooters (Declaration Not to be a Motor Vehicle) Notice 2018 (the Notice).
[9] Section 168A of the LTA confers a declaratory power upon the second respondent, Waka Kotahi, in respect of vehicles that fall outside of the definition of a motor vehicle. It relevantly provides:
168A Agency may declare that vehicle is mobility device or is not motor vehicle
(1)If a vehicle or type of vehicle is powered solely by a motor that has a maximum power output not exceeding 1 500 W, the Agency may, by notice, declare that the vehicle or type of vehicle is a mobility device.
(2)If a vehicle or type of vehicle is propelled by a motor that has a maximum power output not exceeding 300 W, the Agency may, by notice, declare that the vehicle or type of vehicle is not a motor vehicle.
(3)If a vehicle or type of vehicle is propelled by a motor that has a maximum power output greater than 300 W but not exceeding 600 W, the Agency may, by notice, declare that the vehicle or type of vehicle is not a motor vehicle.
(4)If the Agency makes a declaration under subsection (3), the Agency may—
(a)impose conditions with respect to—
(i)the operation of the vehicle or type of vehicle; and
(ii)the equipment required on the vehicle or type of vehicle; and
(b)specify those conditions in the notice.
(5)A notice under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
1 Land Transport Management Act 2003, s 94.
2 Section 95(1)(b).
[10] The terms ‘motor vehicle’ and ‘vehicle’ are further defined in s 2 of the Act as follows:
motor vehicle—
(a)means a vehicle drawn or propelled by mechanical power; and
(b)includes a trailer; but
(c)does not include—
…
(vii)a vehicle that the Agency has declared under section 168A is not a motor vehicle; or
vehicle—
(a)means a contrivance equipped with wheels, tracks, or revolving runners on which it moves or is moved; and
(b)includes a hovercraft, a skateboard, in-line skates, and roller skates; but
…
[11] Whether or not a vehicle is classed as a ‘motor vehicle’ for the purposes of the Act has a number of consequences. These primarily concern licensing, inspection and registration. For example, under s 5(1)(a), a person may not drive a motor vehicle on a road without an appropriate current driver licence. Section 242(1) further provides that a motor vehicle must not be operated on a road unless the motor vehicle—
(a)is registered and licensed in accordance with this Part; and
(b)has affixed to it and displayed in the manner prescribed by regulations made under this Part the registration plates issued for it; and
(c)has displayed in the manner prescribed by regulations made under this Part a current licence issued for it and appropriate for its use under section 244.
[12] The Act also contains various enforcement provisions. For instance, a person who contravenes s 5(1)(a) by driving a motor vehicle without an appropriate driver licence is liable under s 31(2) to a fine not exceeding $1,000.
[13] It follows that a declaration pursuant to s 168A(2) that a type of vehicle is not a ‘motor vehicle’ has the effect of exempting the vehicle from various requirements under the Act (and the related penalties for failing to comply with those requirements).
[14] The Act is not, however, a complete code as regards the regulation of roads and vehicles. Section 152 of the Act confers a power on the Minister of Transport to make ‘ordinary rules’ for a number of purposes, including the safety of and licensing for any
form of transport. These rules may, inter alia, set standards and requirements concerning road user behaviour, regulate traffic, and regulate the use of roads.3
[15] Ordinary rules made under s 152 are secondary legislation.4 One such example of particular relevance to the present proceeding is the Land Transport (Road User) Rule 2004 (the Rule).
Land Transport (Road User) Rule 2004
[16] One of the stated objectives of the Rule is to include small wheeled vehicles within a category called a ‘wheeled recreational device’ (WRD).5 This is defined as:6
(a)… a vehicle that is a wheeled conveyance (other than a cycle that has a wheel diameter exceeding 355 mm) and that is propelled by human power or gravity; and
(b)includes a conveyance to which are attached 1 or more auxiliary propulsion motors that have a combined maximum power output not exceeding 300 W
[17] The Rule then introduces various requirements for users of WRD’s, about which the law had previously been largely silent. For example, users must remain as near as practicable to the edge of the roadway; operate the device in a careful and considerate manner, and not at a speed which constitutes a hazard to other footpath users; and must give way to pedestrians and drivers of mobility devices.7 In addition, a person may stop, stand or park a wheeled recreational device on the footpath if doing so does not unreasonably obstruct any other user of the footpath.8
[18] By way of contrast, a person operating a motor vehicle is expressly prohibited under the Rule from driving, stopping, standing or parking the vehicle on a footpath.9 The distinction between a wheeled recreational device and a motor vehicle therefore
3 Land Transport Act 1998, ss 153 and 157.
4 Section 152(2).
5 Land Transport (Road User) Rule 2004, sch 1 cl 5.
6 Land Transport (Road User) Rule 2004, r 1.6.
7 Rule 11.1.
8 Rule 6.14(3).
9 Land Transport (Road User) Rule 2004, rr 2.13 and 6.14(1).
remains important, and indeed the Rule makes clear that no duty or requirement it imposes on drivers of motor vehicles applies to persons driving WRD’s.10
The Notice
[19] Waka Kotahi published the Notice after it was approached by commercial entities who wished to obtain licences to hire e-scooters to members of the public (the hire companies). The hire companies were concerned that, under the Rule, e-scooters fell within the definition of a motor vehicle. This meant they would need to be registered and could only be operated by persons holding a current driver’s licence. The hire companies therefore asked Waka Kotahi to exercise its power under s 168A to declare that e-scooters were not motor vehicles.
[20] On 18 September 2018 Waka Kotahi published the Notice in the New Zealand Gazette. The Notice reads:
E-Scooters (Declaration Not to be Motor Vehicles) Notice 2018
Pursuant to section 168A of the Land Transport Act 1998, and pursuant to an authority delegated to me by the Chief Executive of the New Zealand Transport Agency, I, Brandon Mainwaring, Senior Manager, Operational Policy, Planning and Performance, declare an electronic scooter not to be a motor vehicle if all of the following apply:
a.The electric scooter is comprised primarily of a footboard, two or three wheels, and a long steering handle;
b.The electric scooter’s wheels do not exceed 355mm in diameter;
c.The electric scooter has one or more electric auxiliary propulsion motors; and
d.The combined maximum power output of the electric auxiliary propulsion motors does not exceed 300 Watts.
This notice expires on 30 September 2023.
Dated at Wellington this 18th day of September 2018.
BRANDON MAINWARING, Senior Manager, Operational Police, Planning and Performance, NZ Transport Agency.
Explanatory Note
10 Land Transport (Road User) Rule 2004, r 1.5(c).
This note does not form part of the notice but is intended to indicate its general effect.
The purpose of this notice is to remove the requirement for scooters designed in the style of traditional children’s toys, with a footboard, two or three wheels and a long steering handle, to be registered as motor vehicles if they are also fitted with lower powered electronic auxiliary propulsion motors.
Grounds of review
[21]Living Streets advances three grounds of review. They are:
(a)error of law in making the decision to publish the Notice;
(b)failure to consult with affected parties; and
(c)failure to take into account mandatory considerations.
Preliminary issue: amendment of the statement of claim
[22] Before dealing with the grounds of review it is necessary to deal with a preliminary issue that was raised for the first time in the written submissions filed on behalf of Living Streets shortly before the hearing.
[23] Living Streets contends that the e-scooters currently operated by the Interveners and other hire companies exceed the maximum power output permitted by the Rule and the Notice. However, the experts retained by Living Streets and Waka Kotahi differ on the meaning of the term “maximum power output”. Living Streets sought clarity on the meaning of that term and to this end sought leave to amend paragraph 46 of the statement of claim to enable the Court to deal with this issue.
[24]Paragraph 46 currently reads as follows:
46. Scooters which are designed to be used primarily under propulsion by an electric motor or which are fitted with an electric motor, or motors, with a combined maximum power output exceeding 300W do not come within the terms of the Rule definition of wheeled recreational device and within the terms of the Notice.
[25]Living Streets sought to amend the paragraph so it would read:
46.Scooters which are designed to be used primarily under propulsion by an electric motor or which are fitted with an electric motor, or motors, with a combined maximum power output (meaning the peak power which an e-scooters can deliver in its controlled configuration) exceeding 300W do not come within the terms of the Rule definition of wheeled recreational device and within the terms of the Notice.
(Proposed amendment italicised)
[26] Living Streets also sought to amend its prayer for relief so that the declaration that it sought was in the same terms as the amended paragraph 46.
[27] As I advised counsel during the hearing, I do not propose to take up the invitation to determine the meaning of the term “maximum power output”. An issue of this nature would normally be determined in proceedings seeking declaratory relief rather than an application for judicial review. This is because it does not relate to or arise out of the decision-making process that led to the publication of the Notice. Rather, it relates to events that have allegedly occurred since the Notice was published.
[28] Furthermore, the facts giving rise to the issue between the experts are subject to dispute and it is not possible to resolve this without cross-examination.
[29] I therefore decline to grant leave to amend the statement of claim. However, in case it is of assistance, I add these observations. First, this issue will always arise in circumstances that are device specific. The enquiry will be whether a particular e- scooter complies with the limitation on power output imposed by the Notice and the Rule. Some devices may comply with the regulatory requirements whilst others may not. I do not consider the issue can be determined on a generic basis.
[30] Secondly, and as a matter of common sense, whether the e-scooter in question complies with the power output limitation will be a question of fact. If it is subject to a controller or governor that prevents it from producing more than the maximum prescribed power output then it will obviously comply with the regulated limits. However, where the device is able to exceed those limits by any means, including the use of peak power output, it will not comply. I therefore see no relevance in the fact that an e-scooter may only be able to be operated at peak power output for a limited period of time.
First ground of review: error of law
The alleged error
[31] The purpose of the Notice was to enable e-scooters to be used on the basis that they were WRD’s, thereby avoiding the registration and licensing requirements imposed on owners and users of motor vehicles. This also meant that they could be used on either the roadway or the footpath. Living Streets contends that Waka Kotahi erred in law because it mistakenly believed that e-scooters of the type that would be affected by the Notice were “wheeled recreational devices” (WRD’s) as that term is defined in the Rule.
[32] Living Streets contends that Waka Kotahi was fundamentally mistaken in its belief because, as defined in the Rule, WRD’s must be fitted with one or more electric auxiliary propulsion motors. Living Streets argues that e-scooters of the type to which the Notice was to apply do not fall within this description because they are fitted with electric motors that provide the primary means of propulsion. In other words, the electric motors are not auxiliary as the Rule requires. It follows that the devices the commercial entities wished to hire out to the public did not fall within the definition of WRD’s, and Waka Kotahi had no power to make a declaration that they were not motor vehicles. This prompts Living Streets to ask the Court to make a declaration that the e-scooters operated by the Interveners do not fall within the description of WRD’s.
[33] Living Streets contends the mistake that Waka Kotahi made is analogous to the situation that arose in DFS New Zealand Ltd v New Zealand Customs Service.11 In that case the New Zealand Customs Service (Customs) decided to revoke the ability of a duty-free retailer to sell goods over the counter in a downtown store to customers who were not travelling overseas. The retailer acquired those goods overseas, and was not required to pay import duties on them until after it had sold the goods through the store. At the time Customs revoked the retailer’s ability to sell goods over the counter both Customs and the retailer mistakenly believed that the economic impact of the revocation on the retailer would be significantly mitigated by an excise provision
11 DFS New Zealand Ltd v New Zealand Customs Service [2013] NZAR 175 (HC).
known as “duty drawback”. They later discovered the retailer could not use this provision because it only applied to goods that were re-exported overseas.
[34] Kos J held that, in making the decision to revoke the retailer’s ability to sell goods over the counter, Customs made “a collateral error of law that led to a false assumption being made as to the economic consequences of the proposed decision”.12 The error was one of mixed law and fact because error of law led to error of fact. Furthermore, the impact of the error was substantial because it concerned the matter that Customs was seeking to form a view on.
[35] In the present case Waka Kotahi would undoubtedly have been generally aware of the propulsion system used in e-scooters of the type the hire companies intended to make available to the general public. They are equipped with an electric motor that is engaged when the rider propels the scooter forward by pushing off with the foot in the same manner as a rider propels a conventional scooter. Thereafter the scooter is powered in a variety of ways. The motor propels the scooter whilst travelling on flat surfaces but when travelling downhill the scooter is propelled by both gravity and the motor. Whilst travelling uphill the scooter uses both the motor and foot propulsion.
[36] However, in DFS there was no dispute that the decision maker, Customs, was mistaken as to the law. In the present case Waka Kotahi says it was not mistaken as to the law. It has proceeded on the basis that the term “auxiliary” does not impose a requirement that the motor must be a secondary source of propulsion. Rather, it views the term as meaning “helping” or “supplementary”. In this regard the position is different to the manner in which the Rule defines “cycles”, because the Rule requires these to be primarily powered by muscular energy.
[37] I consider arguments run both ways. Waka Kotahi points out that e-scooters are not solely powered by the motor because they require muscular energy to be used to engage the motor. Muscular energy may also need to be used when the scooter encounters an uphill gradient. Furthermore, although e-scooters are primarily powered by the electric motor once in motion, there is nothing in the Rule or Notice
12 Above n 11, at [45].
to impose a requirement that WRD’s must be primarily powered by muscular energy. In that sense the position is markedly different to the definition given to cycles.
[38] However, I consider it is also arguable that the word “auxiliary” implies that the motor must be ancillary or secondary to another form of propulsion. The analogy to be drawn in this context is the auxiliary motor commonly installed in sailboats. The primary means of propulsion for a sailboat is likely to be the use of sails. However, the motor enables the boat to be used when there is no wind or in situations where a steady form of propulsion is required. The only alternative forms of propulsion available to an e-scooter are gravity, for which a sloping surface is required, and the type of manual propulsion normally used to propel a conventional scooter. For the most part, however, the motor is the sole means of propulsion.
[39] Given the fact that arguments run both ways I am not prepared to hold that in publishing the Notice Waka Kotahi was clearly influenced by a mistaken belief as to the meaning of the term “auxiliary”. I consider the factual and legal position in the present case to be greatly different than that in DFS.
[40] I accept that, if the interpretation advanced by Living Streets is correct, some e-scooters currently in use may fall outside the definition contained in the Notice. However, this does not affect the validity of the Notice. It merely reflects the fact that the Notice did not achieve the outcome the hire companies hoped to achieve.
[41] Furthermore, persons who ride or hire out e-scooters that do not fall within the definition of WRD’s may be liable to criminal prosecution. Alternatively, they may face civil proceedings to prevent them from using or hiring out e-scooters on the basis that they are not WRD’s and/or do not fall within the description contained in the Rule and Notice. Those persons will be directly affected by the meaning to be given to the term “auxiliary”. Living Streets obviously has an interest in that issue but it is not directly affected by it. I consider the appropriate forum in which to conclusively determine the meaning of the term is a case where it is directly in issue. For present purposes I am not satisfied that Waka Kotahi made an error of law in publishing the Notice.
[42] I would not in any event have been prepared to make a declaration that e- scooters of the type operated by the Interveners fall outside the definition of WRD’s. In this context I derive some assistance from the approach taken by the Supreme Court in Shark Experience Ltd v PauaMAC5 Inc.13 In that case, the appellant operated a tourism business that offered clients the opportunity to view great white sharks at close quarters from cages lowered into the sea in areas where the sharks were known to congregate. The sharks would be attracted to the cages through berley and bait that was dropped into the water in the vicinity of the cages. Commercial paua divers who recovered paua from the same areas were concerned that this practice was placing them in physical danger from the sharks. They contended that the tourism venture had attracted a greater number of sharks to the area than would normally be the case, and that the use of bait and berley meant the sharks were becoming more aggressive.
[43] The issue before the Supreme Court was whether the practice adopted by the appellant was a criminal offence under s 63A of the Wildlife Act 1953. That section makes it an offence to hunt or kill great white sharks. The definition of “hunt or kill” within that legislation included “pursuing, disturbing, or molesting any wildlife,
…whether this results in killing or capturing or not”.14
[44] The Court of Appeal had issued a declaration that shark cage diving was an offence under the Wildlife Act.15 The Supreme Court held that the activity of shark cage diving did not amount to hunting or pursuing great white sharks.16 However, it had not heard full argument as to whether it amounted to “molesting” the sharks and did not consider it appropriate to decide that issue.17 The Supreme Court also took a different view as to the meaning of the word “disturbing” than had the Court of Appeal, and the evidence in the courts below had not been directed to this. It therefore did not consider it appropriate to make a finding as to whether the activity amounted to disturbing or molesting the sharks.18
13 Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111, [2019] 1 NZLR 791.
14 Wildlife Act 1953, s 2(1).
15 PauaMAC5 Inc v Director-General of Conservation [2018] NZCA 348, [2019] 2 NZLR 1 at [68].
16 Above n 13, at [102] and [103].
17 At [104].
18 At [110].
[45] Importantly, however, the Supreme Court went on to make the following observations regarding the appropriateness of making a declaration as to whether a particular activity amounts to a criminal offence:
A declaration?
…
[111] A declaration is a discretionary remedy. There is jurisdiction to issue a declaration where it relates to a matter which might be the subject of a criminal prosecution, but it is a discretion which is exercised with extreme caution. This is because the declaration may have the effect of usurping the function of the criminal court and, in particular, may usurp the role of the fact- finder in any later criminal prosecution. Although not binding on the criminal court, the existence of a declaration risks prejudicing the integrity of subsequent criminal proceedings. It is difficult to predict how the existence of such a declaration might play out in the context of a trial. We also cannot discount the risk that declaring the activity lawful or unlawful would have an effect upon future prosecutorial decisions. We consider that these considerations weigh heavily against the issue of a declaration in this case.
[112] So too does the second, and related, point, that the declaration concerns future conduct. Even were we satisfied as to the lawfulness of shark cage diving as it has been practised in the past, we cannot rule out the possibility that changes in practice or conduct in the individual case will impact on the legality of the activity. The facts before the court may not necessarily be the facts which exist at some future time when shark cage diving takes place.
(Footnotes omitted)
[46] I consider these observations are equally apt to the circumstances of the present case.
Second ground of review: failure to consult
The arguments
[47] As Waka Kotahi points out, a statutory decision maker is not under an obligation to consult with any other party unless required by statute, common law or through legitimate expectation.19 Nor does the wording used in s 168A suggest Waka Kotahi was under an obligation to consult with any other person before exercising its powers under that section. This is not the case with other provisions within the LTA.
19 Phillip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at ch 25.4.9.
By way of example, s 161 requires the Minister to give notice of any intention to make any new ordinary rule and to consult with such persons, representative groups, government departments and Crown entities as the Minister considers appropriate.20 The Minister is also required to consult with those entities before making any emergency rules under s 163.21
[48] Furthermore, Waka Kotahi had never consulted with third parties in the past before exercising its powers under s 168A. There is therefore no basis for Living Streets to rely on past practice as leading to any form of obligation or legitimate expectation that it would consult with Living Streets or the public generally before publishing the Notice in 2018. This is to be contrasted to situations in the past where, acting on behalf of the Minister, the New Zealand Transport Agency (the predecessor to Waka Kotahi) has complied with its statutory obligations to consult with prescribed entities before exercising its powers to make ordinary rules under 161 of the LTA.
[49] Living Streets nevertheless contends that Waka Kotahi had a duty to consult both with it and with the general public, including organisations who advocate on behalf of the disabled, before publishing the Notice. It says Waka Kotahi breached this duty by failing to undertake any form of consultation at all. In support of this argument Living Streets relies on the combined effect of several factors.
International obligations
[50] Living Streets points out that legislation is to be interpreted having regard to New Zealand’s international obligations and should be read in a manner consistent with those obligations.22 Furthermore, the principle of consistency may require decision makers to exercise discretionary powers consistently with New Zealand’s international obligations.23 In other situations decision makers are required to take such considerations into account when making decisions.24
20 Land Transport Act 1998, s 161(2)(a) and (c).
21 Section 163(1).
22 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [43].
23 Helu v Immigration and Protection Tribunal, above n 22, at [144].
24 Above n 22, at [144].
[51] Living Streets also points out that the 2006 United Nations Convention on the Rights of Persons with Disabilities (the Convention) was designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. New Zealand ratified the Convention on 25 September 2008 and it has received appellate endorsement in a judicial review context.25
[52] The relevant provisions of the Convention for present purposes are Articles 4.3 and 9.1, which provide as follows:
Article 4.3:
In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with, and actively involve persons with disabilities, including children with disabilities, through their representative organisations.
Article 9.1:
To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
a)Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
b)Information, communications and other services, including electronic services and emergency services.
[53] Living Streets contends that New Zealand’s obligations under the Convention required Waka Kotahi to consult with organisations that advocate on behalf of disabled persons because such persons are most likely to be affected by e-scooters being ridden on the footpath. Disabled persons will also be adversely affected if e-scooters are left
25 Chamberlain v Ministry of Health [2018] NZCA 8, [2018] 2 NZLR 771 at [31] and [76].
lying on and around footpaths because this may obstruct the path of disabled pedestrians and those who ride on mobility scooters.
Legitimate expectation
[54] Living Streets also says it had a legitimate expectation that Waka Kotahi would consult with it before publishing the Notice. This arose from statements made by Ministers of Transport on three occasions, confirming that Living Streets would be consulted before any steps were taken to permit e-scooters to be ridden on footpaths.
Common law
[55] Finally, Living Streets relies on duties of consultation that may arise at common law.
Analysis
[56] Living Streets relies upon the cumulative effect of its arguments. It also suggests Waka Kotahi has taken a technical or unduly narrow approach in responding to these. However, an argument will only carry weight, whether considered on its own or with others, where it has merit. A collection of unmeritorious arguments will not, by force of numbers, result in a meritorious argument. It is therefore necessary to consider Living Streets’ arguments individually to assess the weight they should be given collectively.
International obligations
[57] The difficulty with the argument for Living Streets under this ground is that New Zealand gave effect to its obligations under the Convention by enacting the Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008 (the Act). The purpose of the Act was to amend this country’s enactments (including statutes and regulations) to enable New Zealand to ratify the Convention. The Act did not incorporate art 4(3) into New Zealand domestic law and it did not impose a general obligation on those exercising statutory powers to do so in accordance with the principles contained in the Convention. Nor did it amend the LTA generally, or s 168A specifically.
[58] Furthermore, art 4(3) relates to decision-making processes “concerning issues relating to persons with disabilities”. I accept the submission for Waka Kotahi that the decision-making process that led to the Notice being published was not concerned with issues relating to persons with disabilities. Rather, it was concerned with the registration and licencing requirements of e-scooters.
[59] The approach the courts should take to international obligations in the LTA context was considered in Bin Zhang v Police.26 In that case Clifford J held that international obligations imposed by another convention had not been imported into the LTA because Parliament had only chosen to partially incorporate the convention in question into domestic law. As a result, the Court found that to read those obligations into the LTA would amount to a form of legislation rather than interpretation.27
[60] I take the same view. I do not accept that Waka Kotahi was required to consult with any party to give effect to New Zealand’s obligations under the Convention.
Legitimate expectation
[61] Living Streets contends that three letters it received from Ministers of the Crown during 2015 and 2016 led it to have a legitimate expectation that Waka Kotahi would consult with it before taking any step that would result in e-scooters being permitted to travel on footpaths.
[62] The first of these is a letter dated 3 November 2015 that Living Streets received from the Hon Craig Foss, the Associate Minister of Transport at that time. This responded to an earlier letter Living Streets had sent to the Hon Simon Bridges, the then Minister of Transport. This has not been produced in evidence but it is clear from the Associate Minister’s response that Living Streets had raised the issue of postal delivery vehicles travelling on footpaths. The letter from the Associate Minister stated:
Thank you for your letter of 11 October 2015 to Hon Simon Bridges, Minister of Transport, concerning the use of vehicles on footpaths. Your letter has been
26 Bin Zhang v Police [2009] NZAR 217 (HC).
27 At [37].
referred to me for reply as the matters you raise fall within my portfolio responsibilities.
I am concerned with the safety of all road users, including pedestrians. I agree it is important that pedestrians feel safe when using footpaths and in particular, when they are sharing them with other users.
Transport officials advise me that exemptions can be granted for certain vehicles where the request meets the required conditions or circumstances. This includes the NZ Post mail delivery vehicles you have noted in your correspondence that are being trialled. However, outside of an exemption the law currently prevents the use of footpaths by the newly imported vehicle you have described regardless of what an importer may claim.
Officials generally monitor new vehicle types to determine whether there is a need for legislative or enforcement activity. Any changes to the law concerning the vehicles you have described and footpath use that may affect pedestrians would require public consultation. Although transport officials are not undertaking a formal project concerning vehicle classifications at this time, Living Streets Aotearoa would be invited to provide a submission on this issue if there were to be any future changes.
(Emphasis added)
[63] As Waka Kotahi points out, this letter came from the Associate Minister of Transport and not Waka Kotahi. Putting that issue to one side, the italicised portion of the letter suggests that the Associate Minister was referring to possible changes to the Rule rather than use of the power under s 168A to declare that specified vehicles are not motor vehicles for the purposes of registration. Any change to the Rule would obviously require consultation by virtue of s 161 of the LTA.
[64] The second letter is dated 15 March 2016 and was received from the Hon Simon Bridges, the then Minister of Transport. It reads:
It was good to meet with Living Streets Aotearoa and other organisations who promote walking-friendly communities. Following is my response to the three issues you have raised.
Maintain the current law on who can and who cannot use footpaths
There are no current proposals to change the law on who can and cannot use footpaths. I will keep Living Streets Aotearoa’s interests in mind should this current situation alter. Any changes to the law concerning low powered vehicles and footpath use, which may affect pedestrians, would require public consultation.
…
[65] The law regarding the use of footpaths is contained in the Rule. I therefore do not consider this letter assists Living Streets to establish a legitimate expectation that Waka Kotahi would consult with it in the future before exercising its powers under s 168A of the LTA.
[66] The third letter was also sent by the Hon Simon Bridges and is dated 9 May 2016. On this occasion the topic being discussed was a robotic device being trialled by a nationwide pizza chain. The letter stated:
Thank you for your letter of 5 April 2016 regarding the potential trial of the Domino’s Robotic Unit in New Zealand.
The comments I made in my letter to you of 15 March 2016 are still correct. There are no current proposals to change the law on who can and who cannot use footpaths. Any changes to the law concerning low-powered vehicles and footpath use, which may affect pedestrians, would require public consultation.
I note your concern for the well-being of vulnerable footpath users relating to the proposed trial of the Domino’s Robotic Unit. Discussions with Domino’s about a potential trial are at a very early stage, and it is not yet clear if they would be proposing to test on the footpath or road in New Zealand.
I can assure you that safety would be a key consideration of any trial. The New Zealand Transport Agency would work with Domino’s to develop a safety management plan in advance of any trial to ensure the safety of all involved. The requirements included in any plan and the stakeholders involved in the trial would depend on the design of the trial.
As your organisation has a particular interest in footpath use, Domino’s would be required to involve your organisation if the testing were to include significant travel on the footpath. Domino’s would also likely need to work with local government to ensure compliance with local bylaws.
I would like to reiterate that the Domino’s Robotic Unit is currently only being considered as a trial. Trials enable different kinds of emerging and innovation technology to be tested in a controlled environment, and socialised with the public. In turn, trials also provide the opportunity to the public to provide feedback about the technology and their acceptability of the technology.
…
[67] As in the case of the other two items of correspondence, I consider this letter was referring to possible changes to the Rule, which governs the use of footpaths. Any changes to the Rule would obviously require consultation under s 161 but this does not create a legitimate expectation that the same would be the case in any exercise of the power under s 168A.
[68] It follows that, whether viewed individually or collectively, the letters on which Living Streets relies do not give rise to a ground for review under this head.
Common law
[69] At common law a legitimate expectation as to consultation has been recognised in exceptional circumstances. A case frequently cited in this context is Pascoe Properties Ltd v Nelson City Council.28 In that case a local authority had decided to convert a public carpark into a “pocket park”. The construction of the carpark had initially been funded through a targeted rate levied on inner city ratepayers and the public had been using it as a carpark for more than 30 years. MacKenzie J held that this gave rise to a statutory obligation under s 78 of the Local Government Act 2002 to undertake public consultation before a decision was made to use the carpark for another purpose.29 The fact that ratepayers in the inner city had met the cost of installing the carpark also gave rise to a legitimate expectation that they would be consulted before such a decision was made.30
[70] I do not consider the facts in the present case are in any way comparable to those in Pascoe. Living Streets cannot be viewed as a group so directly affected by Waka Kotahi’s decision that they could have a legitimate expectation of being consulted by Waka Kotahi in relation to its decision to publish the Notice.
[71]This ground of review fails as a result.
Failure to take into account mandatory considerations
The arguments
[72] Living Streets contends that, in making the decision, Waka Kotahi failed to take into account the mandatory considerations of footpath safety, how it would ensure e-scooters complied with the requirements imposed by the Rule, and how these limits could be policed and enforced.
28 Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC).
29 At [12].
30 At [12].
[73] Waka Kotahi responds by submitting that it took each of the matters alleged by Living Streets to be mandatory considerations into account, and that Living Streets’ arguments under this ground are impermissible complaints as to the weight placed on the considerations.
Safety
[74] Living Streets submits that safety is a key objective of both the LTA and the Rule. It contends Waka Kotahi was impliedly required to take safety into account when making a declaration under s 168A, one consequence of which was to allow WRD’s to share footpaths with pedestrians.
[75] Living Streets says that Waka Kotahi’s regard to safety was largely restricted to reliance on historical local information and statistics that were unsuitable because they related to the use of other recreational devices on footpaths or to devices which had not been legal prior to the publication of the Notice.
[76] Living Streets also submits that proper regard to safety required consideration of a future state of affairs in which e-scooters would be presumptively lawful to use on roads, including footpaths, in the context of substantial ridesharing operations in major cities. It also contends that New Zealand’s ratification of the Convention meant that Waka Kotahi had an obligation to consider the safety of disabled pedestrians.
[77] Waka Kotahi responds by pointing out that the LTA does not expressly provide for any mandatory considerations to be taken into account when exercising the power under s 168A. However, it accepts that one of its objectives under the LTMA is to undertake its functions in a way that contributes to an effective, efficient, and safe land transport system in New Zealand.31
[78] Waka Kotahi also acknowledges that the absence of widespread use of e- scooters in New Zealand in 2018 limited the amount of relevant data it could access in relation to safety issues. However, it contends that it gave genuine consideration to such information as was then available. Consistent with this, Waka Kotahi monitored
31 Land Transport Management Act 2003, ss 94 and 95.
initial trials of e-scooters in Auckland and Christchurch. It also sought and obtained details of incidents involving e-scooters that resulted in injury. It says that this data did not indicate any matters of concern.
[79] Furthermore, prior to issuing the Notice, Waka Kotahi says that it undertook a ‘safety review’. This involved consideration of several data points both domestic and international, including crash and injury data relating to e-scooters. A similar safety review had earlier been carried out in relation to the Rule, as part of which the position of disabled pedestrians had been expressly considered.
[80] Overall, these sources led Waka Kotahi to conclude that e-scooters did not raise any significant safety concerns, including to pedestrians.
Compliance
[81] Living Streets submits that the limitations imposed in the Rule regarding maximum power output were clearly intended to restrict the speed and acceleration of WRD’s. This measure was obviously designed to reduce the risk that WRD’s would pose to the safety of both riders and pedestrians. It contends that the issue of whether e-scooters complied with these regulatory requirements, and whether these could be adequately enforced, were therefore mandatory considerations Waka Kotahi was required to take into account.
[82] Living Streets submits that the inquiries carried out by Waka Kotahi indicated that no agency or authority intended to enforce compliance with the regulatory limits. It also contends that no agency or authority currently has the necessary equipment to test compliance with those limits, even putting to one side the lack of clarity around the terms “auxiliary” and “maximum power output”. It says that field testing of the kind undertaken for the present proceeding has been criticised as inadequate.
[83] Waka Kotahi, in response, reiterates that it was not required to reach a conclusion as to whether any particular e-scooters would come within the terms of the Notice. This is because the decision under s 168A was to declare a class of vehicles not to be motor vehicles by reference to general characteristics.
[84] Waka Kotahi also submits that s 168A does not permit it to create discrete enforcement mechanisms, and that enforcement therefore depends on the general mechanisms under the LTA and the Rule. In any event, it says that it expressly considered enforcement of the terms of the Notice and consulted with Police on the matter. It also considered whether to appoint enforcement officers as it has a power to do under the LTA. Ultimately, however, it concluded the Police were best placed to act as the primary means of enforcement.
[85] Waka Kotahi further contends there is no evidence to support Living Streets’ allegation that Waka Kotahi “knew Police enforcement would not occur”. It says that the question of enforcement resources or strategy is primarily a matter for Police, as opposed to one that has any bearing on the validity of the Notice.
[86] Finally, Waka Kotahi points out that it is open to Living Streets, or to one of its members, to bring a private prosecution against any e-scooter hire company that it believes is operating contrary to the Notice or the Rule.
Analysis
Safety
[87] A mandatory consideration is one that the statute expressly or impliedly identifies as being required to take into account.32 Where they are not specified, mandatory considerations may be ascertained from the subject matter of the decision and the context in which it is made, as well as the scope and objects of relevant legislation.33
[88] The obligation to consider mandatory considerations requires the decision- maker to turn its mind to the matter in a genuine and open manner.34 The weight to be
32 CREEDNZ Inc v Governor General [1981] 1 NZLR 172 (CA) at 183.
33 Secretary for Justice v Simes [2012] NZCA 459 at [50]; Keam v Minister of Works and Development [1982] 1 NZLR 319 (CA) at 327; and Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 (CA) at 651-652.
34 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 551 (CA); and Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 at 608.
given to a mandatory consideration, however, is ultimately a matter for the decision- maker.35
[89] As Waka Kotahi submits, s 168A does not expressly provide for any mandatory considerations. It does not appear to be in dispute, however, that safety is an overarching objective and purpose of the land transport system and the governing legislation in this area. Furthermore, as noted at the outset, a decision under s 168A to declare that a type of vehicle is not a motor vehicle has the effect of exempting that vehicle from licensing and registration requirements, many of which are in place for reasons of safety. It also means that such vehicles are permitted to be used on the footpath.
[90] I therefore accept that safety was a mandatory consideration Waka Kotahi was required to take into account in making the decision to issue the Notice. I am also satisfied from the information before me, however, that Waka Kotahi did genuinely turn its mind to that question. Furthermore, it reached a conclusion that publication of the Notice would not impact adversely on the safety of road users or pedestrians.
[91] Living Streets’ real argument is that Waka Kotahi’s efforts were insufficient. However, it is not the role of the Court in a judicial review context to undertake an assessment of the merits of the safety data on which Waka Kotahi made its decision. Nor has Living Streets advanced an argument that the decision was unreasonable. The focus must therefore be on the process by which the decision was made. Given my conclusion that Waka Kotahi did consider safety as a mandatory consideration, I find no error in this respect.
[92] I also note the difficulty Waka Kotahi would have faced in speculating as to the likely future impact of e-scooters on pedestrians following publication of the Notice. Whilst some guidance could have been gathered from the experience overseas, and to some extent this was taken into account, Waka Kotahi cannot be criticised for failing to take into account data that did not yet exist in New Zealand.
35 Phillip A Joseph, above n 19, at ch 23.2.3(5).
Compliance
[93] In publishing the Notice I accept that Waka Kotahi was not concerned with the issue of whether particular e-scooters complied with the requirements imposed by the Notice. It was entitled to proceed on the basis that the hire companies and persons who purchased e-scooters for their own use were responsible in the first instance for ensuring their devices complied with the regulatory requirements. It follows that the issue of whether particular e-scooters complied with these was not a mandatory consideration Waka Kotahi was required to take into account when making the decision.
[94] I also accept, however, that the ability to enforce the regulatory requirements was a mandatory consideration as part of the broader consideration of safety. Without this, there would be no means of ensuring that those who hired and used e-scooters were complying with those requirements.
[95] Waka Kotahi obviously turned its mind to the issue of compliance to the extent that it engaged with the police on that issue. However, this alerted it to the fact that the police were only interested in rider behaviour. They did not intend to play any role in determining whether e-scooters met the regulatory requirements.
[96] It appears that Waka Kotahi did not consider the wider issue of how it was going to ensure that the power output limitation imposed by the Rule and the Notice was being observed. This was important because it impacts directly on safety issues, both for riders of e-scooters and those in the vicinity. It seems that Waka Kotahi had not established a method by which it could reliably measure the maximum power output of e-scooters before it published the Notice, and debates still continue as to how this is best achieved.
[97] I consider this was an error because Waka Kotahi, or some other agency, needed to have the ability to determine whether individual e-scooters complied with the regulatory requirements should this be raised as an issue. However, failure to take into account a mandatory consideration does not automatically result in a decision being set aside. Rather, the applicant must show there is a realistic prospect that the mandatory consideration(s), if taken into account, would have led to a different
conclusion.36 In other words, the consequences of a failure to take the mandatory consideration into account must have been material. In the present case, however, there is nothing in the evidence to suggest Waka Kotahi’s decision to publish the Notice may have been different if it had taken further steps to investigate and implement a means by which to test compliance by individual devices with the regulatory requirements. Rather, those steps are likely to have bolstered its decision to publish the Notice.
[98]This ground of review must therefore fail.
Relief
[99] It is obviously not strictly necessary for me to deal with the issue of relief given my conclusion that Waka Kotahi committed no error of law or procedure that affected the validity of the Notice. Nevertheless, in case I am wrong in my conclusions on those issues, I propose to add some brief comments regarding the issue of relief.
[100] Several factors persuade me that, had it been necessary to consider the issue of relief, I would not have been prepared to set Waka Kotahi’s decision aside. The first is the delay that has occurred in filing the present proceeding. Living Streets did not file the proceeding until 5 August 2021. That was nearly three years after Waka Kotahi published the Notice. Some allowance must be made for the fact that Living Streets is an advocacy organisation of limited means. Living Streets also explains that it pursued other avenues before filing the present proceeding. Nevertheless, a delay of the magnitude that occurred here is significant by any standard.
[101] Of itself, delay may not be sufficient to dissuade the Court from granting relief. That is less likely to be the case, however, where the delay has caused prejudice to others. In the present case numerous parties have altered their positions significantly on the understanding that the Notice was valid. These include the hire companies, who have invested considerable capital in setting up their ventures and have engaged employees to administer their businesses. It also includes those who have purchased e-scooters for their own use.
36 Secretary for Justice v Simes, above n 33, at [64].
[102] Living Streets submits that the hire companies must always have known they were at risk of having their ability to operate curtailed at any stage by an administrative decision. I do not accept this submission. In the absence of any advance notice of the present application I consider the hire companies were entitled to assume they would be able to operate their businesses for at least the initial five year period during which the Notice was to remain in force.
[103] This leads to the next point, which relates to the fact that the Notice will expire in September 2023. It seems likely that Waka Kotahi decided the Notice was initially to remain in force for five years so it could review the position at the expiration of that period in light of information then available. As will already be apparent, comparatively little was known about the likely effect of e-scooters on the streets and footpaths of Auckland when the Notice was published in September 2018. Waka Kotahi and Auckland Council could reasonably expect to be able to gather a much greater amount of information about this issue once the Notice had been in force for five years.
[104] It can therefore be anticipated that Waka Kotahi and Auckland Council are currently assembling information to enable them to make a decision next year regarding the future use of e-scooters in the city. Given the issues raised in this proceeding it is likely that this will include the implementation of a system to enable individual devices to be tested to ensure compliance with the limitations imposed by the Notice.
[105] These decisions are very important, and they should obviously be made on a considered and fully informed basis. An order quashing the Notice with immediate effect is likely to force Waka Kotahi to make its decision 12 months earlier than planned. This may well detract from its ability to make a decision on a considered and fully informed basis. I do not consider that this outcome would be in the public interest.
Result
[106]The application for judicial review is dismissed.
Costs
[107] Waka Kotahi has been the successful party and would ordinarily be entitled to an award of costs on a Category 2B basis together with disbursements as fixed by the Registrar. If the parties cannot reach agreement on costs they have leave to file and serve memoranda of up to five pages in length on that issue. I will then determine costs on the papers.
Lang J
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