Save the Queen Street Society Incorporated v Auckland Council

[2021] NZHC 1005

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000726

[2021] NZHC 1005

UNDER

the Judicial Review Procedure Act 2019

BETWEEN

SAVE THE QUEEN STREET SOCIETY INCORPORATED

Applicant

AND

AUCKLAND COUNCIL

First Respondent

AUCKLAND TRANSPORT

Second Respondent

Hearing:

5 May 2021

Appearances:

S Lowery and A M Cameron for Applicant

P M S McNamara and C Ryan for Respondents

Judgment:

6 May 2021

JUDGMENT OF VENNING J

[Application for interim relief]

This judgment was delivered by me on 6 May 2021 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:           Russell McVeagh, Auckland

Simpson Grierson, Auckland Counsel:           S M Lowery/A M Cameron Auckland

SAVE THE QUEEN STREET SOCIETY INC v AUCKLAND COUNCIL [2021] NZHC 1005 [6 May 2021]

Introduction

[1]    Both parties to this proceeding agree that Queen Street should be reshaped to prioritise pedestrian use of the city centre. Both also agree that the existing Emergency Works on Queen Street should be removed. Where they differ is how and when those objectives are to be achieved.

[2]    Save The Queen Street Society Incorporated (the Society) seeks judicial review of decisions of the Auckland Council (the Council) and Auckland Transport (AT) affecting the reshaping of Queen Street.1

[3]The particular decisions challenged are:

(a)the Council’s decision of 18 June 2020 to confirm that Emergency Works carried out on Queen Street during the Covid-19 pandemic would be retained and used as a basis for the Queen Street Pilot (the Pilot), which would be brought forward;

(b)AT’s resolution of 26 June 2020 authorising the Emergency Works and their retention for the Pilot;

(together the June 2020 decision); and

(c)the Council’s decision announced on 16 April 2021 to replace the Emergency Works in the section of Queen Street between Shortland and Customs Street East with further non-permanent works (the April 2021 decision).

[4]    The Society seeks interim relief under s 15 of the Judicial Review Procedure Act 2016 (the Act) pending the hearing of its substantive proceedings. In particular, it seeks orders preventing the Council from undertaking any physical works to:

1      In this judgment references to “the Council” include references to AT unless it is necessary to refer separately to AT.

(a)substitute, exchange, build upon or add to the temporary works installed in Queen Street in April and May 2020 in response to Covid- 19, which have since been used for the Queen Street Access for Everyone Pilot;

(b)install or construct the works between Shortland Street and Customs Street East announced by the Council on 16 April 2021.

Background

[5]    The Council’s Auckland Plan 2050 states that the city centre will continue to be the focus of Auckland business, tourism, educational, cultural and civic activities. The City Centre Master Plan (CCMP) has Queen Street at its heart. The CCMP as refreshed in 2020 included the concept of Access for Everyone (A4E). A4E was intended to reshape the city centre streets so that more street space was given to people walking, cycling and using public transport rather than non-essential vehicles, (such as private cars and motor bikes). The overall thrust of A4E is to prioritise pedestrian over vehicle use in the city centre.

[6]    The Pilot is part of the A4E programme specifically focussed on the Queen Street valley. The aims of the Pilot are to:

(a)limit motorised through traffic on Queen Street;

(b)prioritise access to city centre destinations;

(c)create new public spaces;

(d)improve access for servicing freight and delivery;

(e)favour public transport, walking and cycling.

[7]    Both the CCMP and the Pilot are formal Council policy. The refreshed 2020 CCMP was adopted by the Council’s planning committee on 5 March 2020. That decision is not challenged by the Society.

[8]    In April and May 2020, in response to the Covid-19 pandemic, temporary changes were made to Queen Street, primarily to support physical distancing (the Emergency Works). The Emergency Works reduced vehicle lanes on Queen Street by closing the two kerbside lanes to traffic and designating them as additional footpath space, moved bus stops into the carriageway, and reduced loading zone spaces and short-term parking. The Emergency Works were initially supported by the use of cones and multi-coloured road marking. The cones were later replaced with “hit sticks”.

[9]    The Pilot was scheduled to commence with the new phase of the City Rail Link (CRL) planned for March 2021. However, given the Emergency Works were already in place, in June 2020 the Council made the decision to bring forward the initial works by several months and to commence the Pilot in July 2020.

[10]   Following the initiation of the Pilot limited refinements were made to the Emergency Works. The refinements included: road paint, bus platforms, planters, footpath markings and concrete separators. Further operational and amenity changes were made after December 2020.

[11]   The Council now proposes to carry out further work to advance the Pilot on Queen Street in four stages. The first stage involves work in Queen Street between Shortland Street and Customs Street East (including the Fort Street intersection) (the Stage 1 works).

[12]   On 16 April 2021 the Council publicly announced the Stage 1 works. The Council intends that the Stage 1 works will trial changes to the streetscape of Queen Street to inform future stages of improvements based on feedback. The Council refers to this process as “tactical urbanisation” – it involves trying through doing. The changes are said to be of high quality but will not be permanent or unchangeable.

[13]The main features of the Stage 1 works are:

·extension of currently formed footpaths, including composite decking;

·additional street furniture;

·creating a “pocket park” at the corner of Queen Street and Fort Street;

·provision of native planting in planters;

·infilling some existing parking bays using stone pavers; and

·approved signage and line marking.

The Applicant

[14]   The Society was incorporated on 21 October 2020. Its secretary, Andrew Krukziener has provided a substantive affidavit in support of its application. The Society has 295 members. It was formed because of concern over the alterations to Queen Street’s layout implemented by the Emergency Works in April and May 2020. Apart from Mr Krukziener, the committee members include Viv Beck, Chief Executive of the Heart of the City (HOTC) (an association of businesses in the central city), and a number of other professionals and business owners.

[15]   Apart from the affidavits by Mr Krukziener and Ms Beck in support of the application, the Society has filed affidavits from Graeme McIndoe, an architect and urban designer, Brett Harries, a professional engineer with a particular expertise in transportation and Todd Eglinton, a market researcher.

[16]   In addition, a number of affidavits have been filed by franchise and business owners, taxi drivers, and a hotel operator. The overwhelming evidence of the commercial business owners and operators is directed at the impact on their businesses of the Emergency Works in particular, and their concern that the proposed Stage 1 works will maintain that disruption to their business which primarily arises from the lack of functionality of Queen Street now that it has been reduced to two lanes. The concern of businesses at the current state of Queen Street is underlined by Ms Beck’s involvement as a committee member of the Society.

The Applicant’s case

[17]   The applicant says there was no public consultation before the June 2020 decision was made and no effective consultation before the April 2021 decision. Mr Krukziener and Ms Beck’s evidence addresses the issue of their dealings with the Council in relation to the issue of consultation in relation to both the June 2020 and April 2021 decisions (on their case, the lack of proper consultation).

[18]   The applicant says there have been no substantial changes to the Emergency Works since July 2020 and they effectively remain in place. They have impacted on the aesthetics and functionality of Queen Street. The applicant says the Emergency Works also pose safety hazards because of the inconsistent road furniture and street markings. They have reduced access for delivery drivers, emergency vehicles, hotel guests and taxi and ride sharers. Mr Harries has confirmed the reduced traffic functionality of Queen Street. Mr Krukziener says the Emergency Works have spoiled Queen Street’s appearance. They use low quality and makeshift materials. The overall effect of the Emergency Works has been to create a negative public perception which has impacted on businesses situated on Queen Street.

[19]   The applicant takes particular issue with the Council’s April 2021 decision to replace the Emergency Works with the Stage 1 works between Shortland Street and Customs Street East. The applicant is concerned that work will entrench what it sees as the existing failings. It says there is no indication of a comprehensive long-term development plan for Queen Street. Further, such Council documentation as is available suggests the Council does not have funds allocated to undertake a comprehensive redevelopment of Queen Street.

[20]   In its substantive claim the applicant alleges the June 2020 and April 2021 decisions are unlawful, ignore mandatory relevant considerations, breach substantive legitimate expectation, breach the right to natural justice, fail to follow prescribed consultation requirements, are not proportionate and are unreasonable in all the circumstances. It seeks orders:

(a)declaring the decisions unauthorised or invalid;

(b)setting aside the decisions;

(c)other relief as may be appropriate;

(d)costs.

Interim relief under the Judicial Review Procedure Act 2016

[21]   As noted, the applicant seeks interim relief pending the determination of its substantive claim. The interim relief is sought under s 15 of the Act. As relevant, s 15 provides:

15       Interim orders

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders—

(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

…

[22]   The applicant must satisfy the Court that it is necessary for the interim orders to be made to preserve its position pending the hearing of its substantive claim.2

[23]   If the applicant satisfies the Court that it has a position it is necessary to preserve pending the hearing of its substantive proceeding, then the Court has a discretion to grant the interim relief sought.

[24]   When considering whether to exercise that discretion the Court will consider all the circumstances of the case, including the apparent strengths and weaknesses of the claim, the competing advantages and detriments to the parties, the status quo, the public and private repercussions, and the overall interests of justice.3

2      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA); and Easton v Wellington City Council [2010] NZSC 10.

3      Carlton & United Breweries Ltd v Minister of Customs, above n 2; and ENZA Ltd v Apple and Pear Export Permits Committee HC Wellington CP 266/00, 18 December 2000.

The threshold test

[25]   Before the issue of whether the Court should exercise its discretion arises, the applicant must satisfy the threshold test that it has a position it is necessary to preserve. That requires consideration of the existing circumstances, the substantive relief sought and the consequences of not making an interim order. The applicant must identify the position it seeks to preserve.

[26]   As Henry J noted (when discussing the predecessor to s15) in Woodhouse v Auckland City Council:4

The clear purpose of s 8 is to give a right of protection on an interim basis to an applicant who may otherwise be unfairly prejudiced by reason of the delay in obtaining a final hearing. The lapse of time may in some circumstances render the practical effect of final relief of little or no value; it may put an applicant in a disadvantaged position which it is later found to have been wrong; or it may result in the right to the final relief sought having expired altogether. Hence the need for an interim preservation of position. It is therefore important to look at what is being sought by way of substantive relief, to see whether there is a position which should be preserved and which is the subject of or at least relevant in a significant way to the substantive application.

[27]   The interim orders sought by the applicant would prevent the Council from proceeding with the Stage 1 work or from doing anything in relation to the Emergency Works in Queen Street generally (other than remove them). A principal problem for the applicant is that such orders would not address a major concern of its members, which is the current compromised state of Queen Street and its reduced traffic functionality because of the Emergency Works. The interim orders sought would prevent the Stage 1 work and any further works from replacing the existing Emergency Works. It would leave the situation as it is at present with the Emergency Works in situ.

[28]   From the evidence of most of the applicant’s deponents, their concerns would only be met by removal of the Emergency Works. So, unless the interim orders went further and directed the Council to remove the Emergency Works and to reinstate the

4      Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).

dual carriageways, what the applicant (or at least several of its deponents) seek will not be achieved.

[29]   While the interim orders as drafted would permit the Council to remove the Emergency Works, there is no suggestion the Council has any intention to remove the Emergency Works unless it is as part of the Stage 1 works (or, for the balance of Queen Street, as part of a later work programme). In an internal memorandum of 23 March 2021 the Head of City Centre Development suggests that the Council will seek to deliver “focused interventions” by 30 June 2021 and in parallel, will take steps to assess and remove unnecessary Emergency Works.

[30]   There is no basis or jurisdiction for the Court to make a mandatory order requiring the Council to remove the Emergency Works on the current application. Such an order is not sought and, in any event s 15 does not provide for such relief. The purpose of s 15 is to preserve the position of an applicant, not to improve it.

[31]   The relief sought in the substantive proceedings is declaratory. The applicant seeks declarations that the June 2020 and April 2021 decisions are unlawful and an order setting them aside. Even if the applicant were to succeed with its substantive claim, the issues relating to the future shape of Queen Street and how the objectives of the CCMP are to be met would remain.

[32]   The applicant recognises that but argues that there should be full consultation before decisions are made on how best to achieve the objectives of the CCMP including the aim of the pedestrianisation of Queen Street. It argues effective consultation should be required rather than allowing the Council to make changes “via the back door” by the impugned decisions. But if the applicant succeeds in its substantive case, the installation of the Stage 1 works will not prevent the applicant achieving its goal of full consultation regarding the future development of Queen Street. The Stage 1 works are reversible.

[33]   Mr Lowery suggested that there was a spectrum applying to decisions and actions that are reversible. If so, Mr Potter’s evidence suggests the Stage 1 work to be

well towards the reversible end rather than the irreversible end of the spectrum. Mr Potter is the Council’s Director of Infrastructure and Environmental Services.

[34]   The applicant says the Stage 1 work will create “facts on the ground” that may undermine the opportunity for openminded consultation in the future. The applicant argues that the interim orders are reasonably necessary to preserve its position because the new works in Stage 1 seek to entrench the impugned decisions. The applicant says that there would be a real prospect that on any future challenge the Court would conclude the balance of convenience falls in favour of the Council due to the expense of removing the new works.

[35]   To support that submission Mr Lowery referred to the decision of Smith v Taupo District Council.5 The Council had granted resource consent to landowners to build a house near Lake Taupo. The consent was granted on a non-notified basis. The plaintiffs sought judicial review of the non-notification decision and an order cancelling the resource consent. Pending the determination of the judicial review proceeding they applied for an interim order preventing the landowners from taking any steps to implement the resource consent. Nicholson J granted the application for interim relief. While the landowners were prepared to give an undertaking they would not proceed any further in implementing the consent other than carrying out the earthworks authorised by it, the Judge considered that it was reasonably necessary to make the order as the earthworks were a key part of the proposal and if they were carried out before the substantive issue was decided their presence may have had a significant psychological effect in achieving a favourable decision for the landowners.

[36]   I agree with Mr McNamara that the Smith decision is distinguishable from the present. The interim order in that case preserved the position and prevented the earthworks. In this case the Emergency Works already exist. It is also relevant that the case involved the actions of a private individual. The Council in the present case is on notice of the applicant’s position and its opposition to the Stage 1 work. Mr Potter has confirmed in his affidavit that the Stage 1 work is essentially temporary and can be undone.  Further, as part of the process of “tactical urbanisation” it is expected

5      Smith v Taupo District Council [2002] NZRMA 59.

that some changes or refinements will be made as the changes are tested. The Council accepts that the changes under Stage 1 may not be permanent. There is no reason to suggest that if the applicant succeeds in its substantive case and the Council is required to reconsider the position that it will not do so openly and in accordance with its obligations under the Local Government Act 2002.

[37]   The present case is quite different from other cases where restraining orders or declarations were granted in circumstances where, if the interim order had not been made the position would have been irreversible: Norman v Tūpuna Maunga o Tāmaki Makaurau Authority and Manawatu Polytechnic v Attorney-General.6

[38]   The applicant also says the situation will deteriorate further in mid-2021 when a large number of buses will be diverted down Queen Street due to the CRL construction. Before the position is entrenched it is appropriate to pause and assess whether the respondents’ decisions are lawful. However, as noted, that situation is caused by the existing Emergency Works. Even if the interim orders were granted they would not affect the existence of the Emergency Works.

[39]   In his submission in reply Mr Lowery suggested that the position to be preserved was the prevention of harm to real people whose businesses were suffering as a result of the Emergency Works. The evidence of the business owners is largely directed at the issues caused by the reduction of the carriageway from four lanes to two lanes, with only one lane in either direction.

[40]   The impact on businesses is confirmed by a physical survey of businesses carried out by Ms Bartlett, an office administrator. She noted that of the 345 stores at street level, 90 of them (26 per cent) were closed, empty or for lease or sale.

[41]   I do not discount the difficulties that a number of businesspeople in the central city, particularly the deponents before the Court on this application, are experiencing. But part of the reason for those difficulties will be the Covid pandemic with the attendant cessation of overseas tourists, a significant reduction in the number of hotel

6      Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2021] NZHC 201; and Manawatu Polytechnic v Attorney-General CP324/97, 15 December 1997.

guests and the change in the working environment and working habits of inner-city workers. It will not entirely be because of the Emergency Works.

[42]   There is force in Mr McNamara’s submission that the interim relief is counterintuitive. Even if the interim orders were granted the Emergency Works will stay. The four-lane carriageway will not be reinstated. The existing unsightly Emergency Works will remain between Shortland Street and Customs Street East. Even the applicants accept that the Stage 1 works will be a “cosmetic” improvement over the existing Emergency Works.

[43]   The purpose of s 15 is to preserve an applicant’s position pending the determination of the substantive proceedings. The position the applicants want to achieve is to have the Emergency Works removed and to reinstate Queen Street back as it was before the Emergency Works. That position does not exist.

[44]    For the above reasons, the applicants fail to satisfy the Court that they have a position that it is necessary to preserve pending final determination of the substantive application.

Discretion

[45]   In the event I am wrong in concluding that the applicants do not have a position that it is necessary to preserve I address the discretionary considerations.

Merits of the case

[46]   The applicant submits its case is robust. Mr McNamara agreed that for present purposes the Council was prepared to accept the applicant’s case could not be said to be without merit. I accept the applicant has an arguable case, particularly concerning the issue of consultation. I regard this factor as evenly balanced.

The statutory power in issue

[47]   While the decisions were made by the Council as part of its statutory function, the applicant submits the impugned decisions are not those traditionally associated

with high policy content such as the exercise of statutory powers to set rates or to impose taxation. Further, AT is required to act independently of any political mandate.

[48]   Mr McNamara submitted that there is a clear public interest in the Council being able to carry out its statutory and democratic role and deliver on policies. There is the public support for the policy objective of reducing through traffic on Queen Street and giving greater priority to pedestrians. That reflects the CCMP, which was adopted after extensive community engagement and feedback.

[49]   I accept that this consideration favours the Council. The proposed Stage 1 works are a practical manifestation of the Council’s exercise of its statutory obligations under the Local Government Act. In implementing the Pilot the Council is acting to promote the social, economic, environmental and cultural wellbeing of the community it serves.7

Public and private repercussions of granting relief

[50]   The Council has estimated the costs of the new Stage 1 works at $1.1 million. Mr Lowery submitted that if the works are installed and the applicant succeeds in its substantive case they will likely need to be removed. That will be a waste of public funds. Against that, Mr Potter has said suggested that a number of the enhancements are temporary in themselves or are reusable so could be used elsewhere.

[51]   Mr McNamara made the point that the Council has entered a contract with a contractor for the Stage 1 work. The Council will be subject to extension penalties and potentially damages if the contract is cancelled. Against that, Mr Lowery noted that as long ago as 23 September 2020 the Council was aware that the Society had been established and that legal challenges were anticipated. The Council entered the contract knowing that there would be opposition to the new Stage 1 work.

[52]   Mr Potter said that the Council has obtained funding from NZTA but only on the basis that the funding must be applied this year, by 30 June 2021. Mr Lowery submitted that it was speculative to suggest the funding would be lost if Stage 1 was

7      Local Government Act 2002, ss 10 and 11.

not progressed by then. The funding agreement does contain a clause requiring the funding to be applied this year. I accept there is a potential for the funding from NZTA to be lost if the works are not implemented by 30 June this year.

[53]   The risk of facing a damages claim from the contractor and possibly losing the NZTA funding support the Council’s opposition to the interim orders.

Third party interests

[54]   There is then the position of the contractor. The contractor’s position is protected to the extent the contract has penalty clauses for extensions. If the Council does not give the go-ahead for the works to commence within three months and then fails to respond to a one month notice from the contractor, the contractor would be entitled to cancel and to seek damages. I do not consider the position of the contractor to be a particularly relevant factor.8

Public interest

[55]   Various surveys have been carried out to obtain views of the public, or at least the views of certain sectors of the public. Mr Potter advises that public feedback on the CCMP in 2019 showed 82 per cent of submitters supported A4E. July 2020 research into attitudes to the Queen Street Pilot programme found 73 per cent of respondents supported pedestrian friendly areas in Auckland City. Sixty-two per cent of the respondents felt positive towards the Queen Street Pilot. In October 2020 research undertaken by Colmar Brunton found 55 per cent of respondents considered that when the Pilot was finished Auckland City centre would be significantly improved.

[56]   Against that is Ms Beck’s evidence that the HOTC’s survey disclosed 79 per cent of respondents did not support retaining the Emergency Works as a start point for the Queen Street Pilot. That grew above 80 per cent as more people gave feedback after the close-off date. The common themes reported by the respondents were the appearance of Queen Street as a construction site, problems with accessing buildings,

8      See also the comments of Barker J regarding a contractor’s position when dealing with Councils in Lamont v Hawkes Bay County Council [1981] 2 NZLR 442 at 452 (HC).

safety and slower travel times on Queen Street, including buses. On the other hand a number expressed support for the pedestrianisation of Queen Street.

[57]   Mr Eglinton also gave evidence of surveying 106 business operators and 136 pedestrians. The response to the question: “Do you think the reduction in traffic lanes and the addition of concrete bollards and hit sticks has a positive or negative effect on Queen Street?” led to a negative response of 3.6 out of 10 with 1 being very negative and 10 being very positive”. The pedestrians’ response was an average 3.8 out of 10.

[58]   It seems there is public support for the ultimate pedestrianisation of Queen Street, but not for the existing Emergency Works.

The overall justice/balance of convenience

[59]   The applicant acknowledges that on a “cosmetic level” the new works in Stage 1 are better than the existing Emergency Works but says that they are still temporary, low quality and not good enough for the main street of Auckland.

[60]   Mr Lowery confirmed the applicant agrees with and supports the Council’s long-term concept of pedestrianisation. The issue the applicant has is that it does not consider the Council’s proposal for the new works in Stage 1 will improve the current issues with the Emergency Works and further, there is no particular plan for the future work. There will also be further disruption while the Stage 1 works are carried out.

[61]   Mr Potter’s evidence is that during the delivery of Stage 1 the remaining Emergency Works and the rest of Queen Street will be assessed. Where they do not contribute to either of the proposed bus network changes or any of the pilot project objectives they will be adapted or removed by July/August 2021. However they will not return to the 2019 condition of Queen Street pre-emergency works because that would not be consistent with the Pilot objectives. The Stage 1 works themselves are only expected to take six weeks. They should not be particularly invasive given they do not involve hard construction.

[62]   The proposed new works in Stage 1 will in fact address some of the issues raised by the applicant, at least in terms of the aesthetics and attractiveness of that

section of Queen Street, even if they do not address the functionality issues. The improvement works under Stage 1 will be no more entrenched than the existing Emergency Work but will be a significant improvement. As Mr McIndoe observed:9

52. While one image does not describe a plan, I am cautiously optimistic that, on the basis of the “mock-up” image prepared by LandLAB … , these street improvements can be a significant improvement over the current Covid-19 emergency works. The image indicates that temporary plastic bollards have been removed (at least in the area which is legible in this view) and there appears to be a reversion back to the base of the pre-Covid-19 streetscape, but with the addition here of a ‘parklet’ some street-side planters and graphics on parts of the street surface. The success of these streetscape improvements will depend on both their image and plan configuration, and I have yet to sight the latter.

Undertaking

[63]   During the hearing Mr Lowery confirmed that if necessary the applicant could pay $200,000 into Court as security for its undertaking as to damages.

[64]   The sum of $200,000 is based on the applicant’s assessment of likely damages the Council may have to pay the contractor of between $110,000 and $132,000 approximately. There may of course be other damages apart from the Council’s potential liability to the contractor. However, in the circumstances it is not necessary to consider the adequacy of the undertaking offered by the applicant any further.

Summary - discretion

[65]   On balance the discretionary factors do not support the grant of interim relief either.

Result

[66]   The applicants fail to establish that the interim orders they seek are necessary to preserve a position.

9      Affidavit of Graeme Robert McIndoe, dated 27 April 2021 (footnote omitted).

[67]   If I am wrong in coming to that conclusion, the applicant fails to satisfy the Court that it should exercise its discretion in favour of the applicant in any event.

[68]The application for interim orders is dismissed.

Costs

[69]   Costs should follow the event. Costs on a 2B basis are appropriate. I do not certify for second counsel.

Timetable

[70]   At the conclusion of the hearing I requested counsel to confer and settle a timetable to ready this case for hearing with some priority. Unfortunately counsel were unable to agree but have set out their proposed alternative timetables.

[71]   The proceedings are of public interest to the citizens of Auckland and the businesspeople and users of Queen Street in particular. I intend to fix a timetable that bears those considerations in mind but also provides a reasonable time for the parties to prepare for the hearing.

[72]I make the following timetable orders to ready the proceedings for hearing on

Tuesday, 20 July 2021 at 10.00 am (two days allocated):

(a)any amended statement of claim to be filed and served by 11 May 2021;

(b)respondents to file and serve statement of defence by 2 June 2021;

(c)respondents to produce their records in regard to the impugned decisions (to the extent not already provided in response to LGOIMA requests and the Potter affidavit) by 2 June 2021;

(d)applicant to file and serve any further evidence by 9 June 2021;

(e)respondents to file and serve their evidence by 23 June 2021;

(f)applicant to file and serve reply evidence by 30 June 2021;

(g)applicant to file and serve submissions and common bundle by 9 July 2021; and

(h)respondents to file and serve submissions by 16 July 2021.

Venning J