Roa v Wellington City Council - [2025] NZHC 609

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-302

[2025] NZHC 609

BETWEEN DEANNA MERANIA ROA, DON GRANT TAINUI ROA AND LYNEOSA TUIQERE
Applicants

AND

WELLINGTON CITY COUNCIL

First Respondent

NEW ZEALAND TRANSPORT AGENCY WAKA KOTAHI

Second Respondent

Hearing: 17–18 February 2025

Appearances:

M Chen and C J Saunders for Applicants

N M H Whittington and K Lee for First Respondent
M Majeed and T Gordon O’Meara for Second Respondent

Judgment:

21 March 2025

JUDGMENT OF McHERRON J

Table of Contents

Chronological narrative[7]

Amended TCD Rule[25]

Stantec safety report[28]

Legislative scheme[41]

My assessment of the rainbow crossing’s compliance with the TCD Rule as at 2018[70]

What happened to the TCD Rule in 2020?[98]

Lower risk environment[106]

Does not resemble and is not similar to a marking described in this Rule[115] Does not mislead road users about the meaning of any traffic control devices[116] Result[117]

Costs[118]

ROA v WELLINGTON CITY COUNCIL [2025] NZHC 609 [21 March 2025]

[1] The applicants are three “concerned Wellington ratepayers” seeking judicial review of the Wellington City Council’s installation and maintenance of the colourful paint strips commonly known as the “rainbow crossing” on Dixon Street, Wellington, where it joins with the Cuba Street pedestrian mall. The applicants:

(a)allege that the rainbow crossing is contrary to the Land Transport Rule: Traffic Control Devices 2004 (TCD Rule)1 and seek a declaration to that effect.

(b)seek a declaration that a determination made on 25 August 2021 by a delegate of the Director of Land Transport (Director) that the crossing did not contravene the TCD Rule (as it had by then been amended) was unlawful.

(c)ask the Court to direct the New Zealand Transport Agency | Waka Kotahi (Waka Kotahi) to reconsider the Director’s 25 August 2021 determination, taking into account the Court’s declarations.

[2] One of the applicants provided an affidavit explaining their motivation for this challenge. The affidavit refers to concerns about the safety of road users, especially the confusion the crossing causes for pedestrians and drivers “as the markings painted on the road look like a pedestrian crossing, even though it is not one and the intersection is controlled by lights”. These concerns were amplified by the applicants’ senior counsel Ms Chen, who referred to the large number of vehicles that have been recorded exceeding the speed limit through the crossing area, and the danger that poses to pedestrians there.

[3] A complication in the present case is that the TDC Rule was amended in 2020, two years after the crossing was installed by the Council in October 2018.2 From the outset, Waka Kotahi had struggled to accommodate the crossing within the existing regulatory framework. The 2020 amendments were its legislative response. However, at the hearing, its senior counsel Ms Majeed candidly accepted that the Council did

1 These rules are made under Land Transport Act 1998.
2 Land Transport Rule Traffic Control Devices Amendment 2020.

not need to obtain Waka Kotahi’s approval for the crossing under…

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.

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Details

Case: [2025] NZHC 609
Decision Date: 21 March 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the applicants, three Wellington ratepayers, sought a judicial review of the Wellington City Council's installation of a rainbow-coloured crossing on Dixon Street. They contended that the crossing violated the Land Transport Rule: Traffic Control Devices 2004 (TCD Rule) and sought a declaration to this effect. The applicants also sought a declaration that a 2021 determination by the Director of Land Transport that the crossing did not contravene the TCD Rule was unlawful. Finally, they requested the Court to direct the New Zealand Transport Agency Waka Kotahi to reconsider the Director's determination.

The Court considered the legal issues, including whether the 2020 amendments to the TCD Rule applied to the crossing installed in 2018 and whether the crossing complied with the TCD Rule. The Court concluded that the 2020 amendments were not retrospective and that the crossing was lawful under the TCD Rule as it stood in 2018. The Court also found that the crossing did not resemble a pedestrian crossing, did not mislead road users, and was installed in a lower risk environment as defined in the Amended TCD Rule. Accordingly, the applicants' claims were dismissed. The Court ordered that if the parties could not resolve questions of costs between themselves, they could file and serve memoranda no more than three pages in length by specific dates.

Orders