O'Loughlin v Auckland Transport
[2025] NZHC 2335
•18 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2227
[2025] NZHC 2335
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
SEAN GREGORY O’LOUGHLIN
Applicant
AND
AUCKLAND TRANSPORT
First Respondent
AND
AUCKLAND COUNCIL
Second Respondent
Hearing: 6 May 2025 Counsel/ Representation:
Applicant self-represented
C J Ryan and L P D Stevens for respondents
Judgment:
18 August 2025
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 18 August 2025 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Simpson Grierson, Auckland
O’LOUGHLIN v AUCKLAND TRANSPORT & ANOR [2025] NZHC 2335 [18 August 2025]
[1] Sean O’Loughlin lives in Bucklands Beach, an Auckland suburb, near a waterfront road named The Parade. He is troubled by the installation on The Parade of a raised pedestrian crossing and three speed humps.
[2] Auckland Transport (AT) was established as a council-controlled organisation of the Auckland Council.1 AT installed the crossing and humps.
[3] Whether AT was entitled to install the crossing and humps depends, for reasons set out below, on the formation of its opinion that they “would not unduly impede vehicular traffic using the road”.2
[4] Regrettably, when making its decision to install the crossing and humps, AT did not consider whether they would unduly impede vehicular traffic. Instead, its decision-making commenced with the assumption that reducing vehicular speeds would likely improve public safety. And, having commenced with that assumption, its decision-making turned on whether various proposed traffic-calming measures would reduce vehicular speeds cost-effectively.
[5] Without having addressed itself to the question whether the crossing and humps would not unduly impede vehicular traffic, AT did not form the opinion it was required to form before it became entitled to install them.
[6] Mr O’Loughlin advanced this judicial review proceeding on the basis that, amongst other things, AT’s installation decision was predetermined (and therefore, implicitly, unlawful). To an extent, it can be said that AT’s failure to meet the above statutory decision-making criterion rendered AT’s decision largely inevitable and, in this sense, predetermined. My preference is to describe the present case more directly, as one in which AT has acted beyond its statutory powers. AT is not prejudiced by this description.
1 Local Government (Auckland Council) Act 2009, s 38.
2 Local Government Act 1974, s 334(1).
Outline of judgment
[7] As stated above, Mr O’Loughlin sought to establish that AT’s installation decision was predetermined (and, implicitly, unlawful). He sought also to establish that a meeting, on 22 May 2024 with a local ratepayers and residents’ association, was in breach of a duty of consistency, and therefore unlawful. He therefore sought declarations:
(a)that the installation of the crossing and humps was predetermined;
(b)that the actions of AT and the Howick Local Board “in consulting with” the ratepayers and residents’ association were procedurally improper, in breach of their duty to act consistently, and unlawful; and
(c)“reversing” the installed crossing and humps.
[8] Alternatively, Mr O’Loughlin sought such other relief as the Court considers appropriate.
[9]In this judgment, I discuss:
(a)the legislation that provides for the installation of “traffic calming measures”, such as raised pedestrian crossings and speed humps, on local roads in Auckland;
(b)the way in which, in Auckland, local roading projects can be funded and are authorised;
(c)the funding and authorising decisions of relevance in this case;
(d)the parties’ submissions on whether the installation of the crossings and humps was predetermined and unlawful, and my assessment that it was;
(e)the 22 May 2024 meeting and whether there should be a declaration of breach of a duty to act consistently (and not unlawfully); and
(f)the appropriate form of relief.
The legislation providing for the installation of traffic calming measures on local roads in Auckland
[10] The installation of traffic calming measures on local roads is provided for, on a national basis, under s 334(1) of the Local Government Act 1974. Section 334(1) forms part of pt 21 of that Act, which is addressed to roads (other than regional roads), service lanes, and access ways.
[11]Relevantly, under s 334(1):
The council may—
(a)construct and enclose any part of a road as a pedestrian safety area:
…
(d) construct or provide on, over, or under any road facilities for the safety, health, or convenience of the public, or for the control of traffic or the enforcement of traffic laws:
provided that no such construction, erection, laying out, or planting shall be carried out, unless in the opinion of the council the construction, erection, laying out, or planting will not unduly impede vehicular traffic entering or using the road (not being a road or part of a road that has been declared a pedestrian mall under section 336).
[12] The Auckland Council was established by the Local Government (Auckland Council) Act 2009.3 It is that Act which established AT as a council-controlled organisation.4
[13] Under the Local Government (Auckland Council) Act, AT’s functions include those of managing and controlling the Auckland transport system in accordance with the Act, including by performing statutory functions and exercising statutory powers set out in s 46 “as if AT were a local authority or other statutory body”.5 AT’s function and powers under s 46 include those under pt 21 of the Local Government Act.6 Section 334(1) forms part of pt 21.
3 Local Government (Auckland Council) Act 2009, s 6.
4 Sections 38 and 39.
5 Section 45(b)(i).
6 Section 46(1)(c).
[14] Thus, the legislation provides, in terms relevant to this case, that AT may construct road facilities “for the safety, health, or convenience of the public, or for the control of traffic … provided that no such construction … shall be carried out, unless in the opinion of the council the construction … will not unduly impede vehicular traffic entering or using the road”.7
The way in which local Auckland roading projects can be funded and are authorised
[15] AT is required to manage and control the Auckland transport system independently of the Council. Under s 50 of the Local Government (Auckland Council) Act, the Council “must not perform any function or exercise any power that this Act has conferred upon [AT] under section 46”.
[16] However, AT’s decision-making is not unconstrained by conduct on the part of the Council. For example, AT must give effect to the Council’s “long-term plan”,8 including its accountability policy for AT.9 Also, the Council influences AT’s decision-making by allocating funding with which AT may deliver transport projects.
LBTCF Funding
[17] Governance of the Council is shared between its governing body and 21 local boards, including the Howick Local Board.10 Since August 2012, a proportion of the Council’s funding of AT’s capital works has been allocated via a so-called Local Board Transport Capital Fund (LBTCF). The LBTCF was established to permit local boards to allocate a population-based share of that fund to local, transport-related capital works.
Authorisation
[18] AT has delegated various powers under pt 21 to its Traffic Control Committee (TCC). The delegated powers include those under s 334(1) of the Local Government Act.
7 Section 334.
8 Section 92.
9 Section 90.
10 Section 7.
The relevant funding and installation decisions in the present case
Background
[19] AT installed various pedestrian facilities on the seaward side of The Parade during 2016 and early 2017.
[20] On 15 May 2017, the Howick Local Board resolved to ask AT to investigate “pedestrian and traffic safety improvements along The Parade between Laings Road and Whitcombe Road”. Its minutes recorded that the options for consideration were to include “crossings, speed control measures and a ‘one way’ system with the option for retention of a ‘two way’ access into Laings Road.” And on 20 April 2020, the Howick Local Board resolved to ask AT to investigate “options for a section of The Parade (between Laings Road and Whitcombe Road) at Bucklands Beach to provide better pedestrian safety, for example a one way system, within a budget envelope of up to $3,000,000”.
[21] AT officers advised the Howick Local Board, at its 21 September 2020 meeting, that:
(a)Technical difficulties of establishing a one-way system were insurmountable at any reasonable cost.
(b)A project to install traffic calming measures on The Parade at its southern portion (spanning Little Bucklands Beach, between its intersections with Laings Road and Whitcombe Road) had been costed at approximately $150,000. The project would feature building a raised crossing and speed tables, and could be included in AT’s works programme at the board’s request.
[22] At that meeting, a motion to approve $150,000 of LBTCF funding for the latter Little Bucklands Beach project was lost. Instead, the board resolved to request AT to investigate “traffic calming measures to [that] section of The Parade … to provide pedestrian safety”.
The allocation of funding
[23] AT presented a list of proposed projects to the Howick Local Board, at a 25 November 2021 workshop, and then more formally at a meeting on 2 December 2021. In respect of The Parade, AT’s report for the board advised as follows:
‘The Parade’ on Bucklands Beach is a road that runs alongside the beach and suffers from two key issues:
• Poor pedestrian amenity including:
o A lack of a separated continuous walking path along the length of ‘The Parade’ including both Bucklands and Little Bucklands Beachs [sic]
o Limited areas to cross the road at Little Bucklands Beach.
• Tidal inundation effects some sections particularly near the sea wall at Little Buckland Beach and at the north end of The Parade near Number 15.
• Perceived high speeds around Little Bucklands Beach and Graingers Point This situation led previous Howick Local Boards to investigate options for improving ‘The Parade’.
[24]And in contemplation of those issues, the report proposed projects as follows:
(a)(as a re-iteration of the $150,000 project discussed in September 2020, now costed at $565,000) the introduction of traffic calming measures and a raised pedestrian crossing on The Parade at Little Bucklands Beach between Laings Road and Whitcombe Road; and
(b)the introduction of three further pedestrian crossing facilities (with their type to be confirmed during initial investigation and consultation) — two additional crossings at the Little Bucklands Beach portion of The Parade, and a further crossing to the north at Bucklands Beach, near The Parade’s intersection with Devon Road.
[25] During the 2 December 2021 meeting, the Howick Local Board resolved to allocate funding for the investigation, design and construction of these projects.
AT’s implementation of the project
[26] Once the local board allocated funding for these projects, as counsel submitted “AT took responsibility for” them. It considered its role to be “to implement the projects within the approved funding parameters”.
[27] The evidence filed by AT and by the Council did not dwell on the manner in which AT undertook to develop an initial design for the now-funded project. It appears, however, that an initial design was approved by a group of AT employees who had formed a so-called Design Review Panel, in September 2022. And that AT consulted publicly upon the initial design in January to March 2023.
[28]Amongst other things, the initial design contemplated the installation of:
(a)five raised pedestrian crossings — three on the Little Bucklands Beach portion of The Parade and one near The Parade’s intersection with Devon Road, and a further one on Laings Road near its intersection with the southern end of The Parade; and
(b)two speed humps on the Little Bucklands Beach portion.
[29] In response to public feedback, the initial design was reduced in scope. The additional crossing on Laings Road was halted, and one of the raised crossings on the Little Bucklands Beach portion of The Parade was amended to become an “at-grade crossing”.
[30] By July 2023, AT’s Principal Project Manager, Ivan Ho, had engaged with the project. Mr Ho’s affidavit annexed a report that the project team appears that month to have provided to AT’s Traffic Control Committee.
July 2023 report for the TCC
[31] This first report to the TCC commenced by stating a set of recommendations which its author (an AT Project Manager) proposed the TCC might endorse as a formal resolution. Relevantly, it stated:
1. Recommendations
The Traffic Control Committee, in accordance with its delegated authority, and being of the opinion that these controls are a justified limitation on the right to freedom of movement on roads which will not unduly impede vehicular traffic using the road, resolves:
A. …
F. That pursuant to section 334 of the Local Government Act 1974 and clauses
2.1 and 8 of the Land Transport Rule: Traffic Control Devices 2004 a pedestrian crossing is to be provided on The Parade in the areas referred to as 'Z-1 ', 'Z3-1 ', 'Z4-1' and 'Z4-2' as indicated in the attached drawing # HG/HLB/18226, Sheets R01-R04, Rev A, dated 3/08/2023.
…
H. That pursuant to section 334 of the Local Government Act 1974 and clauses
2.1 and 7.9(3) of the Land Transport Rule: Traffic Control Devices 2004, a road hump (speed hump) is to be provided on The Parade in the areas referred to as 'H2-1' and 'H2-2' as indicated in the attached drawing # HG/HLB/18226, Sheet R02 Rev A, dated 3/08/2023.
I. That pursuant to section 334 of the Local Government Act 197 4 and clauses
2.1 and 7 .9(3) of the Land Transport Rule: Traffic Control Devices 2004, a road hump (speed table) is to be provided on The Parade in the areas referred to as 'H1-1', 'H3-1 ', 'H4-1' and 'H4-2' as indicated in the attached drawing # HG/HLB/18226, Sheets R01-R04, Rev A, dated 3/08/2023.
[32]Next, the report stated an “executive summary”, as follows:
2. Executive Summary
Auckland Transport is taking a Vision Zero approach to road safety. This means we are striving to have zero deaths or serious injuries on our transport system by 2050. To achieve this, we are working to create a more forgiving road network that recognises that we are human and make mistakes. But those mistakes should not mean someone dies or is seriously injured on our roads.
As part of this initiative, the Local Board have asked us to make some improvements to provide better pedestrian access and increase the safety of people crossing The Parade. This project will be funded by the Local Board Transport Capital Fund Programme. This programme uses funding within AT's annual budget to deliver on Local Board initiatives for local areas and communities.
Projects like this one around Bucklands Beach is another step towards our goal of achieving no deaths or serious injuries on our roads.
[33] The July 2023 Report noted that, of 172 responses to the public consultation in January to March 2023, 46 were in support, 61 provided comments and 65 disagreed.
It recorded that the unsupportive responses were discussed with the Howick Local Board for the purpose of seeking direction.
[34] The July 2023 Report’s appendix set out a broader account of the context in which the TCC’s endorsement was sought. Amongst other things, this included discussion of data obtained from the New Zealand Transport Agency’s Crash Analysis System (CAS). The CAS processes, stores and presents data about crashes reported to New Zealand Police since 1 January 1980. The report observed that:
[D]uring the period 2018 to 2022, there were eight crashes reported along [The Parade]. One was a minor injury and two were serious. One serious injury crash was as a result of a child trying to cross the road and the other one was due to a boat trailer reversing and hitting the passenger who was out of the car to check the trailer. The majority of the non-injury crashes occurred due to drivers speeding along this section of the road.
Therefore, it is considered that there is a speeding issue along this section of The Parade which will be addressed by the proposed speed calming devices resulting in a safer environment for everyone along this road.
[35] The appendix then included a description of five “alternatives”, four of which involved the installation of different forms of traffic calming measures. Each of these alternatives was discussed, with reasons given for the fourth being preferred. The other “alternative” was to “Do Nothing”. It was discussed as follows:
Do Nothing
This option included retaining the existing road layout with minimal maintenance such as surfacing and road marking renewals. This option was not considered as it would not improve safety in this area. Based on the existing crash records, injury crashes involving pedestrians and speeding cars could potentially happen in the future if mitigation measures are not carried out.
[36] The appendix also recorded that the Howick Local Board was “fully supportive of the current proposal”. And it included the following in relation to the negative component of public feedback:
There were 30 concerns raised in regard to what is proposed is not needed. This was responded to by explaining that the proposed number of raised crossings and speed humps ensure a low speed 30km/h to 40km/h environment because there would not be enough space between humps for drivers to significantly speed up. If no crossings or speed humps are proposed, the speed will continue to be high and the road will not be safe for people walking, cycling, or driving.
There were 18 concerns raised that the changes would slow down the traffic and thus causing congestion in the area. This was responded to by explaining that the installation of speed tables and speed humps are not expected to increase traffic congestion in the area.
[37] I note that latter comment responded to the concern about congestion, but not to the concern about slowing down traffic.
The TCC’s August 2023 resolution to proceed
[38] The Chairperson of the TCC confirmed that the TCC had adopted the project team’s recommendations, by affixing to the report an electronic signature dated 11 August 2023. The July 2023 Report thus gained the status of a “resolution”. It was completed with the words “Date Resolved: 11 AUG 2023”, and labelled “Resolution ID: 18226”.
[39] AT offers no direct evidence of the TCC’s independent reasoning (if any) informing its adoption of the project team’s recommendations. One can only infer that the TCC adopted the reasoning set out in the project team’s report.
[40] In August 2023, when the TCC resolved to proceed, construction was thought likely to begin in October 2023. However, a funding shortfall required the Howick Local Board to consider approving a further allocation (of only $7,000) from the LBTCF. It did so, by means of a resolution adopted at a meeting on 19 October 2023. Once that funding was approved, construction was thought likely to begin in February 2024.
AT’s “Raised Crossing Review”
[41] By letter dated 20 December 2023, the Mayor of Auckland advised AT of the Council’s priorities and expectations which it intended should inform development of AT’s statement of intent for the years 2024 to 2027. These included that AT should “cut spending on low-value initiatives and find cheaper alternatives for raised pedestrian crossings”. On 2 February 2024, AT’s Chief Executive issued a “Statement on safety measures and raised crossings”, asserting amongst other things that:
Aucklanders expect us to deliver safety improvements in the most cost effective and least disruptive way possible.
To that end, we review all upcoming projects to ensure we are delivering affordable and practical solutions at as little cost to ratepayers as possible, including raised pedestrian crossings.
[42] AT’s witnesses clarified that it embarked on a specifically targeted “Raised Crossing Review” in February 2024. As Mr Ho put it in contemporaneous correspondence, the project at The Parade was placed “on hold”, while “AT look[ed] at re-design to remove the proposed raised crossing and vertical devices and produce a more cost-effective solution for speed calming and safe pedestrian crossing along this section of road”. On 8 February 2024, the Chair of the Howick Local Board wrote that:
We've made it clear to AT that this project is important to residents and the HLB. While we support the intent to deliver more cost-effective projects, we've expressed our frustration at the delay and concerns about the safety of the public in the meantime. AT has committed to providing an update soon and we'll provide more information when it becomes available, including any changes to the design (if any) once these are known.
[43] Insofar as it affected The Parade, the Raised Crossing Review included the undertaking of pedestrian and traffic surveys, and further review of the CAS data. AT’s project team revised its previous design, so that it:
(a)maintained one of two raised crossings at the southern, Little Bucklands Beach portion of The Parade — the raised crossing outside number 78A;
(b)modified the other raised crossing at this portion of The Parade — outside number 60 — by replacing it with a speed hump;
(c)abandoned the “at-grade” crossing at this portion outside number 71; and
(d)abandoned (at least for the time being) the raised crossing at the northern, Bucklands Beach portion of The Parade, near its intersection with Devon Road — outside number 24).
[44] That last revision reflected a significant re-formulation of the project: while traffic calming measures at the southern, Little Bucklands Beach portion of The Parade might proceed in a first stage of development, those which had been proposed at the northern Bucklands Beach portion were to be withdrawn, for reconsideration as part of a second development stage.
[45] On 30 May 2024, AT sent an information sheet to those participants in the early 2023 public consultation process who had “opted in” to receiving updates. The information sheet discussed these impacts of the Raised Crossing Review, and attached a summary of the survey data that the project team had obtained.
July 2024 report for the TCC
[46] In July 2024, Mr Ho’s project team submitted a further report, featuring its revised design. This July 2024 Report similarly stated an “executive summary”, which on this occasion read as follows:
After the original resolution was approved, a decision was made to review the vertical elements to ensure they are necessary and that no alternatives would achieve the same or similar outcome. Majority of the original proposal were retained, except the raised pedestrian crossing outside No. 60 The Parade have been changed to a speed hump, and the original proposed raised pedestrian crossing outside No. 24 The Parade, as well as the pram crossing with side islands outside No. 71 have been omitted. Both changes were based on the survey data as part of the review process.
This updated design was managed by the Traffic Engineering team. Design was also submitted to Design Review Panel for their update.
[47] Just as the July 2023 Report had done, the July 2024 Report commenced by stating a set of recommendations that the TCC might endorse as a formal resolution. The recommendations were prefaced with the same introduction, as follows:
1. Recommendations
The Traffic Control Committee, in accordance with its delegated authority, and being of the opinion that these controls are a justified limitation on the right to freedom of movement on roads which will not unduly impede vehicular traffic using the road, resolves:
…
[48] The revised design described above was then incorporated into the recommendations by way of adjustment to the measures then specifically stated.
The TCC’s August 2024 resolution to proceed
[49] The TCC’s Chairperson confirmed that the TCC had again adopted the project team’s recommendations. She did so, in similar fashion to her confirmation of the TCC’s previous “resolution” of 11 August 2023, by affixing to the July 2024 Report her electronic signature, this time dated 2 August 2024.
[50] Again, AT offers no direct evidence of the TCC’s independent reasoning informing its adoption of the project team’s recommendations.
The raised crossing and speed humps are installed
[51] On 26 August 2024, AT and the Howick Local Board gave public notice that construction was to commence. Within a matter of months thereafter, the raised crossing and three speed humps were installed at Little Bucklands Beach.
Was the installation predetermined and unlawful?
Mr O’Loughlin’s position
[52] Mr O’Loughlin submits that AT’s decision-making process misrepresented source information, and failed genuinely to consider the option of doing nothing. He says that, accordingly, AT’s decision to install the traffic calming measures at Little Bucklands Beach met the test for predetermination outlined by the Court of Appeal in CREEDNZ Inc v Governor-General.11
[53] In support of these submissions, Mr O’Loughlin refers in detail to the discussion, in the AT project team’s July 2023 report to the TCC, of CAS data (see
[34] above). He refers to CAS data he has sourced himself, and says that the report does not discuss it accurately or fairly. Amongst other things, he points out that the report itself accepts the two serious injury crashes mentioned in CAS data were not
11 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172.
due to speed. And he asserts that the only other crash involving (minor) injury was due to a speeding bus in public service.
[54] Further, Mr O’Loughlin highlights the July 2023 report’s response to the option of doing nothing (see [35] above), including in particular the assertion that “[t]his option was not considered as it would not improve safety in this area”. He submits that the reasoning is so broad that it might serve to justify the installation of novel safety measures on all roads under AT control.
AT’s position
[55] AT characterises Mr O’Loughlin’s challenge as tantamount to a challenge to the factual basis for its decision to install the crossing and speed humps. It submits that such a challenge must be determined in accordance with the high threshold outlined by the Supreme Court in Bryson v Three Foot Six Ltd.12
[56] AT refers to its discretion, arising under s 334(1) of the Local Government Act, to determine whether works constructed under that provision will “unduly” impede vehicular traffic using the road. It cites the following passage from Lord Diplock’s judgment in Secretary of State for Education and Science v Tameside Metropolitan Borough Council:13
The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.
[57] And it submits that its decision would not be unlawful if the Court were simply “to reach a different conclusion to AT on whether vehicular traffic would be unduly impeded” by the traffic controls that have been installed.
[58] AT adds that there is a “high policy content” in decision-making as to whether traffic controls unduly impede traffic. Citing the Court of Appeal’s judgment in Wellington City Council v Woolworths New Zealand Ltd, AT submits that its decisions
12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
13 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (HL) at 1064.
under s 334(1) are therefore of a type with which the Court should not be inclined to interfere. 14
[59] Relying in particular on the evidence of its Transport Design and Standards Manager (the TDS Manager), AT submits that Mr O’Loughlin’s interpretation of the CAS data is incorrect. And it refers to the TDS Manager’s uncontested evidence that raised crossings and speed humps are effective as road safety measures.
[60] AT thus submits there is no evidence, capable of the objective assessment that is required,15 establishing predetermination.
The test for predetermination
[61] In CREEDNZ Inc v Governor-General, it was alleged before the Court of Appeal that Crown ministers of the Executive Council had predetermined their advice, to the Governor-General, to make an Order in Council applying the provisions of the National Development Act 1979 to a proposed aluminium smelter and associated works at Aramoana. Justice Cooke (as he then was) observed that, in this regard:16
The only relevant question can be whether at the time of advising the making of the Order in Council the Ministers genuinely addressed themselves to the statutory criteria and were of the opinion that the criteria were satisfied. If they did hold that opinion at that time, the fact that all or some of them may have formed and declared the same opinion previously does not make the order invalid.
[62] As this passage indicates, predetermination will invalidate decision-making that is required to have regard to statutory criteria if its effect is to prevent the decision-maker “genuinely addressing” those criteria.
[63] In applying that test, the Court of Appeal found that the evidence did not establish the ministers to have approached the matter with closed minds. Amongst other things, the terms of the Order in Council that was issued in consequence of their
14 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA).
15 Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR 799 at [117].
16 At 179.
advice indicated that the ministers applied the statutory criteria, finding only two of the three that had been put to them made out.17
Assessment
[64]I commence my assessment with the evidence of AT’s TDS Manager.
[65] In his first affidavit, he advised that he became involved with the project when it was included within the scope of the Raised Crossing Review in early 2024. This is a curious feature of the evidence. The TDS Manager has been a member of the TCC since June 2022, and he was therefore a TCC member when (on 11 August 2023) its chairperson affixed her electronic signature to the resolutions drafted for the TCC by AT’s project team. In his second affidavit, the TDS Manager confirmed that he did attend the meeting in August 2023 at which the TCC considered the then-proposed measures. But, as mentioned above, AT did not produce direct evidence of the TCC’s independent reasoning informing its adoption of the project team’s recommendations. Its reasoning can only be inferred from the material set out in the report which stated those recommendations for endorsement by resolution.
[66] Be that as it may, both affidavits outline the TDS Manager’s particular concern with vehicular speed on local Auckland roads. Early in his first affidavit, he refers to the Council’s “Auckland Plan 2050”, which sets out the Council’s aim “to eliminate transport deaths and serious injuries” in Auckland by 2050, and to AT’s “Vision Zero for Tāmaki-Makaurau Auckland” strategy. He says that speed management is a key aspect of Vision Zero, because speed is a “key contributing factor” in 60 per cent of fatal crashes. He says that AT’s road safety engineering team investigates areas where crash risk is high, and proposes physical improvements on the roading network to improve safety. These improvements include traffic calming devices such as speed humps and raised tables, pedestrian crossing facilities, intersection upgrades, and speed management. He says this approach seeks to manage travel speed across a stretch of road, but particularly at critical locations such as pedestrian crossings or those intersections with high injury rates. He asserts that “every improvement AT undertakes aims to improve the safety of the road network”.
17 At 179–180, and 194.
[67] Further, the TDS Manager’s evidence confirms that reports to the TCC follow a template which sets out, amongst other things, specific recommendations describing proposed traffic controls, and the legislation “that supports them”. And it refers to the TCC’s standing orders which outline how such recommendations may be dealt with, whether by passing the recommendations made or otherwise. In particular, the TDS Manager says that “it was open to the TCC not to accept” the recommendations in the July 2023 Report. He adds that the TCC accepted the recommendations “which provided legal authorisation for implementing of the 2023 Design”.
[68] But, as observed above (at [31]), the July 2023 Report came to the TCC in a form featuring pre-drafted resolutions which could be adopted by the simple affixing of a signature. The resolutions thus take the form of legal boilerplate, including their assertion to the effect that the TCC is “of the opinion that these controls … will not unduly impede vehicular traffic”. At no point in the balance of the report is the issue raised, let alone grappled with, whether the reduced speeds demanded of all vehicles by the proposed traffic calming measures are due or undue. No consideration is given to the impact of reducing the speeds of all vehicles so that they cannot be maintained at, or just under, the posted 50 kilometres per hour speed limit. The report makes reference to traffic congestion, but as discussed at [37] it fails to consider whether the impact on vehicular traffic was due or undue, in a broader sense, as required by the Act.
[69] The evidence summarised at [66] confirms that the TCC did not consider the issue. Particular emphasis is given to reducing vehicular speeds for the purpose of improving safety. While the evidence draws heavily upon policy-related considerations endorsing speed reduction, it implies an approach which favours the impeding of vehicular traffic for the purpose of safety improvement. Such an approach may or may not be consistent with AT’s statutory entitlement, to construct safety-related facilities on local roads where, in its opinion, they do not “unduly impede vehicular traffic”. But the latter issue is an essential statutory criterion with which AT is required to concern itself. The TDS Manager’s evidence did not do so.
[70] Thus, notably absent from this part of AT’s evidence is any assertion that, in the opinion of the TCC, the traffic calming measures installed at Little Bucklands
Beach, or planned for Bucklands Beach, “will not unduly impede vehicular traffic”. I do not consider the mere affixing of the Chair’s signature to pre-drafted resolutions containing that assertion to amount to evidence that this statutory criterion was “genuinely addressed”.
[71]Addressing the submissions made for AT:
(a)I note that AT’s characterisation of Mr O’Loughlin’s challenge as tantamount to a challenge to the factual basis for its decision is inapt. The flaw in AT’s decision is that its reasoning did not address the statutory criterion. The “high threshold” for factual challenges, outlined in Bryson v Three Foot Six Ltd, is not applicable.
(b)While AT’s reference to Lord Diplock’s judgment in Tameside might have had value if the Court were simply to have reached “a different conclusion to AT”, the difficulty for AT in the present case is that it did not reach a conclusion on the criterion necessary for its exercise of power. More relevantly, Lord Diplock observed elsewhere in that judgment that:18
… it is for a court of law to determine whether it has been established that in reaching his decision … [the decision-maker] had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered[.]
That is the standard that the TCC failed to meet in this case.
(c)The “high policy content” of decision-making as to whether traffic controls unduly impede traffic is, in this case where the decision was not made with that criterion in mind, similarly irrelevant.
[72] As noted, Mr O’Loughlin submitted that AT’s decision to install the traffic calming measures met the test for predetermination outlined in CREEDNZ Inc v Governor-General. The Court of Appeal’s judgment indicates that
18 Secretary of State for Education and Science v Tameside Metropolitan Borough Council, above n 13 at 1065.
predetermination will invalidate decision-making that is required to have regard to statutory criteria, if its effect is to prevent the decision maker “genuinely addressing” those criteria.19 For the reasons I have set out, the evidence meets the test for predetermination of an essential question, to the extent that the question of “unduly impeding vehicular traffic” was not genuinely addressed.
[73] That said, I consider it preferable to describe the evidence as establishing that the TCC simply failed to form the opinion necessary as a statutory pre-requisite to the exercise of its power under s 334(1). On that basis, the decision to install the raised crossing and speed humps was taken, and they were installed, without the existence of authorising power; that is, unlawfully. AT’s position is not prejudiced by this description. It sought, by its evidence and in its submissions, to outline the manner in which it addressed itself to its statutory decision-making power. It did not establish that it did so.
[74] Confirming this point, the overall thrust of AT’s evidence more generally is to the effect that:
(a)The Howick Local Board allocated funding, to which the Council had granted access, for the purpose of investigating and implementing traffic calming measures on The Parade.
(b)An AT project team recommended a set of traffic calming measures, noting public concern that they would “slow down traffic”, but rejecting that concern because “doing nothing” would “not improve safety”.
(c)The TCC adopted the recommendations without addressing itself to the question whether the measures would unduly impede traffic.
[75] It may be that the funding model has distracted the TCC from exercising its delegated statutory power of decision correctly. The fact that the Howick local board has allocated funding that the TCC might then rely upon for the purpose of
19 At 179.
implementing a decision relating to a road in the board’s area, should not have served to distract the TCC from exercising its decision-making power in accordance with the applicable statute.
[76] Given these findings, I do not consider it necessary to discuss Mr O’Loughlin’s submissions that the CAS data was misrepresented.
The 22 May 2024 meeting
[77] As described above, AT’s project team modified its proposed design in response to the Raised Crossing Review, and formulated its report upon that design for the TCC, in the first half of 2024. The meeting about which Mr O’Loughlin raises his complaint occurred during this period, on 22 May 2024.
[78] The meeting was between employees of the Council and AT, members of the Howick Local Board, and members of the Bucklands and Eastern Beaches Ratepayers and Residents Association. It had its genesis in an email sent to the Association by the Chair of the Howick Local Board on 6 May 2024. The email advised that AT had completed a pedestrian count and traffic speed study which had “identified some improvements and enabled them to further refine the design”. The email summarised the design refinements which AT’s project team had formulated and would go on to recommend to the TCC. It described the proposed traffic calming measures at the southern portion of The Parade as part of a first stage of development, to be completed before the end of 2024. And it indicated that AT had identified “potential safety needs” at the northern portion, about which the Chair proposed to consult as a “Stage 2” of development, with a view to construction in 2025.
[79]The Chair’s email to the Association continued:
As a key stakeholder in the public consultation process, we are keen to understand if the Bucklands and Eastern Beaches Residents and Ratepayers Association would be comfortable with this approach? Alternatively, we could re-consult on the minor changes to Stage 1 although this will incur more cost and delay construction.
We are happy to attend one of your meetings to discuss and Auckland Transport have offered to brief you on the proposal if you would like. This isn’t ready for release to the public yet, so we ask that it’s not published too widely, although happy for you to share it with your committee and specific local residents.
[80] During the meeting, AT employees explained the proposed design refinements and the re-formulation of the project into two stages. Presentation slides were shown. The minutes of the meeting record that “Residents committee supported the staged approach and considered that Stage 1 could go ahead as an inform”.
Was the engagement on 22 May 2024 with BEBRA in breach of a duty of consistency and unlawful?
Mr O’Loughlin’s position
[81] Mr O’Loughlin submits that AT and the Howick Local Board had, and breached, a duty to act consistently, by consulting exclusively with the Association. He says such a duty exists, and is anchored in both the rule of law and good administrative practice. Citing Alpine Choppers Ltd v Minister of Conservation, he says the duty requires decision-makers to treat individuals in similar situations in a similar manner, and that equals are to be treated equally. 20
Assessment
[82] In Alpine Choppers, the Department of Conservation had invited expressions of interest from air operators wising to obtain a concession to fly in and out of the Fiordland National Park. And it provided some applicants with information about the process which it did not provide to others. In this Court, Ronald Young J observed that:21
It would be unfair if some potential applicants did not have important information about the process that others did possess. This could unfairly advantage one group as against another. It would fail to treat equals equally.
20 Alpine Choppers Ltd v Minister of Conservation [2008] NZAR 564 at [40].
21 At [40] (footnote omitted).
[83] On this basis, the Judge found that, by its failure to provide the information to the plaintiff, the Department treated the plaintiff “unfairly and thereby failed to provide natural justice”.22 The expression of interest process was set aside.
[84] As can be seen, the Judge regarded the plaintiff’s unequal treatment in that case as a matter giving rise to unfairness and a breach of natural justice. However, it is not clear that the Judge considered the obvious general desirability of treating equals equally as a matter that gives rise to a stand-alone duty, applicable to all who engage with, or who wish to be engaged with by, statutory decision-makers.
[85] Viewed as a matter of natural justice, the question of just what consistent or equal treatment will require, must be “always contextual”.23 The following passage from Joseph on Constitutional and Administrative Law is apt:24
The requirements of natural justice are “flexible”,25 “adaptable”,26 and “context specific”,27 and cannot be neatly tabulated: “This is an area of broad principle, not precise rules”.28 Prescribing prescriptive rules of universal application would introduce “a new formalism” — a “recipe for judicialisation on an unprecedented scale”.29
[86] In the present case, the context in which the 22 May 2024 meeting took place was one in which, the year before, the TCC had purported to resolve to install four raised pedestrian crossings and two speed humps on and just beyond the southern end of the Parade. The meeting was held, it seems, as a matter of political expedience, to sound out the Association on its reaction to cost-cutting measures which would result in the short-term installation of just one raised pedestrian crossing and three speed humps, with a second stage of works (upon fresh “consultation”) potentially to take place at the northern end where a raised crossing had been abandoned.
22 At [49].
23 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
24 Philip A Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [25.1].
25 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132; Birss v Secretary for Justice [1984] 1 NZLR 513 (CA) at 516; Bennett v Superintendent, Rimutaka Prison [2001] 3 NZLR 803 (HC) at [63]; Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [67].
26 Bradley v Attorney-General [1988] 2 NZLR 454 (HC) at 478; Drew v Attorney-General, above n 25 at [67].
27 Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650 at [35].
28 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 16.
29 R (Begum) v Governors of Denbigh High School [2006] UKHL 15, [2006] 2 WLR 719 at [31].
[87] The effect of the amended project, about which Mr O’Loughlin complains he was not consulted, was thus more consistent with Mr O’Loughlin’s preferred outcome (no change) than that which might have prevailed had AT not been required to undertake the Raised Crossing Review. And, for reasons set out earlier in this judgment, the prospect of a sounding taken from Mr O’Loughlin, or others who had originally been opposed to the installation of traffic calming measures on The Parade, being at all influential in the TCC’s reconsideration of whether to proceed with a reduced scope of works, is at best remote.
[88] The apparent closeness of the relationship between the Howick Local Board (which is responsible for traffic works funding decisions) and the Association is noteworthy. But, on the basis just set out, I do not consider there to have been a duty, incumbent upon the board and AT, to engage with or (therefore) beyond the Association on the proposal to undertake reduced-scale works.
[89] It follows that I will not declare that there was a breach of a duty to act consistently.
What is the appropriate form of relief?
[90]As stated above, Mr O’Loughlin sought declarations:
(a)that the installation of the raised pedestrian crossing and speed humps was predetermined;
(b)that the actions of AT and the Howick Local Board “in consulting with” the ratepayers and residents’ association were procedurally improper, in breach of their duty to act consistently, and unlawful; and
(c)“reversing” the installed pedestrian crossing and speed humps.
[91] The forms of relief at [90](a) and (c) might have been appropriately granted under s 16 of the Judicial Review Procedure Act 2016. But I have preferred to express my more substantive finding (at [72]) in terms directed to AT’s failure to consider whether the raised crossing and speed humps would unduly impede traffic. And I do
not overlook the possibility that, upon “genuinely addressing” that question, AT could rationally come to the view they do not unduly impede traffic.
[92] Mr O’Loughlin also sought, alternatively, such other relief as the Court considers appropriate. And, under s 17, the Court may direct the purported maker of a statutory power of decision to reconsider and determine a matter, either in addition to or instead of granting relief under s 16.
[93] Because of the possibility that AT (through its TCC or otherwise) will come to the latter view (at [91]), I consider it appropriate to direct AT to reconsider and determine whether it should have installed the crossing and speed humps.
Result
[94] For the reasons set out above, AT must reconsider and determine whether it should have installed the raised pedestrian crossing and speed humps which were installed at Little Bucklands Beach on the southern portion of The Parade during the latter part of 2024.
[95] In particular, it must genuinely address whether those measures “unduly impede vehicular traffic”, in terms of s 334(1) of the Local Government Act.
[96] If it forms the opinion that the measures unduly impede vehicular traffic to any extent, then to that extent it must remove them.
[97]Mr O’Loughlin appears entitled to costs. In the event the parties cannot agree:
(a)Mr O’Loughlin may file and serve a memorandum no more than five pages in length;
(b)AT and the Council may file and serve a memorandum no more than five pages in length; and
(c)I will determine the issue thereafter on the papers.
Johnstone J
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