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Movement v Waka Kotahi

Movement v Waka Kotahi

Case [2023] NZHC 342 1 March 2023

Administrative Discretion

Judicial Review

Environmental Protection

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INTERIM NON-PUBLICATION CONFIDENTIALITY ORDERS IN TERMS OF CONFIDENTIALITY ORDERS SECTION IN THE JUDGMENT.

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 342

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

AND

MINISTER OF TRANSPORT

Second Respondent

AND

AUCKLAND TRANSPORT

Intervener

Hearing: 3-5 October 2022

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 Intervener

Judgment:

1 March 2023

JUDGMENT OF GRICE J

MOVEMENT v WAKA KOTAHI [2023] NZHC 342 [1 March 2023]

Contents

Introduction [1]

The background[9]

Judicial review[15]

Statutory framework[23]

The GPS 2021[27]

Ministerial expectations[45]

Preparation of the GPS 2021 [47]

Relationship between GPS 2021 and Emissions Reduction Plan[57]
National Land Transport Programme[71]

Waka Kotahi Board decision-making process[84]

Investment Decision Making Framework (IDMF)[99]
Toitū Te Taiao[101]

Board processes[108]

The challenges to the decision [122]

First and second causes of action[126]

Quantitative measurement[126]

Experts[132]

Minister of Transport[150]
Interpretation of the LTMA and the GPS[163]
Purpose of the LTMA[171]
Giving effect to the GPS[182]

Quantitative assessment[199]

IPM (Investment Prioritisation Method)[206]

CATI (Climate Assessment Tool for Investment)[215]

Analysis — CATI and IPM[227]

Conclusion on first and second causes of action[247]

Third cause of action [252]

Submissions by Auckland Transport (intervenor)[257]

Conclusion[262]

Confidentiality orders [268]

Costs[272]

Introduction

[1] The Courts are aware of the significant concerns that many New Zealanders have about climate change and the steps being taken to address the problem. Judicial review allows the Court to ensure that public bodies act within the limits of their legal powers in accordance with the relevant procedures and legal principles governing the exercise of their decision-making function.1 That function has been emphasised in a number of cases challenging decision-making in the context of climate change.

[2] The Court however is not in a position to make political, social and economic choices. Those decisions are entrusted to Ministers and other public bodies.2 There will be choices as to the approach taken by public bodies made legitimately within the statutory and policy framework.

[3] Movement is a charitable trust that advocates for safe, accessible and sustainable transport. It says that it brings this 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. Movement says the first respondent (Waka Kotahi) failed to take into account various issues in relation to climate change, particularly the reduction of greenhouse gas (GHG) emissions, when it prepared and adopted its national land transport programme (NLTP) for 2021–2024 (NLTP 2021–2024).3

[4] The first respondent, Waka Kotahi NZ Transport Agency (Waka Kotahi), is a statutory body which…

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 342
Case: [2023] NZHC 342
Decision Date: 1 March 2023

CaseChat Overview and Summary

In the case of Movement v Waka Kotahi, the High Court of New Zealand dismissed an application for judicial review brought by Movement, a charitable trust advocating for safe, accessible, and sustainable transport. Movement contended that Waka Kotahi, the NZ Transport Agency, failed to consider climate change and greenhouse gas emissions when preparing and adopting its National Land Transport Programme (NLTP) for 2021–2024. The Court found that Waka Kotahi's decision-making process and assessment of activities, including the use of the Investment Prioritisation Method (IPM) and the Climate Assessment Tool for Investment (CATI), met its obligations related to the preparation of the NLTP. The Court held that Waka Kotahi was not required to undertake a quantitative analysis of emissions and that its qualitative assessments in the preparation of the programme met the relevant requirements of the Land Transport Management Act 2003 and the Government Policy Statement on Land Transport 2021. The Court dismissed all three causes of action brought by Movement and did not order any directions for the consideration of the NLTP.

Orders