Movement v Waka Kotahi - [2023] NZHC 809

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000735

[2023] NZHC 809

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review of

decisions under sections 19A and 19B of the Land Transport Management Act 2003

BETWEEN

MOVEMENT

Applicant

AND

WAKA KOTAHI

First Respondent

MINISTER OF TRANSPORT

Second Respondent

AUCKLAND TRANSPORT

Intervener

Hearing: On the Papers

Appearances:

S R Gepp and L S B Acland for Applicant

V L Heine KC, T D Smith and A J Wicks for First Respondent H T N Fong and N B de Lautour for Second Respondent

P M S McNamara for Intervenor

Judgment:

17 April 2023

JUDGMENT OF GRICE J

(Costs)

Introduction and background

[1] This costs application follows the unsuccessful application for judicial review made by Movement in relation to decisions made by Waka Kotahi NZ Transport

MOVEMENT v WAKA KOTAHI [2023] NZHC 809 [17 April 2023]

Agency (Waka Kotahi) to adopt the National Transport Land Programme 2021–2024 (NLTP).1

[2] Climate change is an important issue for the land transport sector.2 However, as I noted in the substantive judgment the Court’s role in the judicial review was limited to ensuring Waka Kotahi had exercised its decision-making in the preparation and approval of the NLTP to ensure that it contributed to the purposes of the relevant legislation and gave effect to the Government Policy Statement on land transport (GPS).3

[3] Waka Kotahi was the successful respondent in the judicial review application and now seeks costs in the usual manner. Waka Kotahi is a statutory agency which is required to, among other things, oversee the planning, operation, implementation, and delivery of public transport and manage the funding of the land transport system. The second respondent, the Minister of Transport, is the responsible Minister. The Minister has not filed an application for costs. Nor has the intervener, Auckland Transport.

[4] Movement is a charitable trust that advocates for safe, accessible and sustainable transport. It said that it had brought the proceeding in the public interest, having regard to the urgency and severity of the climate crisis and the contribution of land transport emissions to New Zealand’s carbon emissions.

[5] Movement’s application for judicial review was based on allegations that Waka Kotahi had failed to take into account various issues in relation to climate change, particularly with reference to greenhouse gas emissions (GHG), when it prepared and adopted the NLTP.

[6] The application for judicial review not only challenged Waka Kotahi’s decision-making at board level but also effectively at the management level, particularly in the application and use of Waka Kotahi’s assessment tools as well as the process for the preparation of the NLTP.

1 Movement v Waka Kotahi [2023] NZHC 342.
2 At [262].
3 At [263].

[7] The judicial review took three hearing days. While there was no cross-examination there was a good deal of evidence by way of affidavits referring to numerous documents. The challenge to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Movement v Waka Kotahi

Details

AGLC: Movement v Waka Kotahi [2023] NZHC 809
Case: [2023] NZHC 809
Decision Date: 17 April 2023

CaseChat Overview and Summary

In this case, Movement, a charitable trust advocating for sustainable transport, sought a judicial review of the National Transport Land Programme 2021–2024 (NLTP) adopted by Waka Kotahi, the NZ Transport Agency. Movement argued that Waka Kotahi failed to consider climate change issues, particularly greenhouse gas emissions, in the NLTP's preparation. The application was dismissed, and Waka Kotahi now seeks costs.

The court considered the complexity of the proceeding, the public interest involved, and whether Movement acted reasonably. Waka Kotahi argued the proceeding was complex and significant, with a substantial amount at stake. The NLTP involved over $15 billion in funding for transport projects and had significant public interest impacts. The court agreed the proceeding was complex and justified a category 3 costs award.

Movement argued the proceeding involved a matter of public interest and should not attract costs against it. However, the court found the legal issues had already been considered, and the challenges made were not without merit but lacked solid basis in some respects. While the public interest was significant, the court found the balance favoured awarding costs to Waka Kotahi.

The court awarded Waka Kotahi its costs as sought, on a 3B basis for most steps and 3C for affidavit preparation. Second counsel was also certified. The disbursements were found reasonable. The court concluded that while the proceeding involved a matter of public interest, the costs should lie where they fell given the issues had already been considered and the challenges lacked solid basis in some respects.

Orders