Thorndon Quay Collective Inc v Wellington City Council
[2022] NZHC 2356
•14 September 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-000003
[2022] NZHC 2356
BETWEEN THORNDON QUAY COLLECTIVE INC
Applicant
AND
WELLINGTON CITY COUNCIL
Respondent
Hearing: 25-26 July 2022 Appearances:
R A Kirkness, R Georgiou and J A Tocher for the Applicant N M H Whittington for the Respondent
Judgment:
14 September 2022
JUDGMENT OF GENDALL J
THORNDON QUAY COLLECTIVE INC v WELLINGTON CITY COUNCIL [2022] NZHC 2356 [14
September 2022]
Table of contents
Introduction [1]
Background [6]
The parties to this proceeding [6]
LGWM [8]
The Council’s traffic resolution process [14]
Grounds of review [24]
Relief sought [32]
Principles of judicial review [37]
Error of law [40]
Unreasonableness [43]
Consultation [49]
Review of a local authority’s decision-making [53]
Decision-making process requirements under the LGA [58] Analysis — Did the Council follow the correct legal process in making its decisions in question? [82]
Issue one: reasonably practicable alternatives — did the Council fail to identify and assess all
reasonably practicable alternatives for the achievement of the safety objective of its decision? [84]
The objective of the Decision [86]
What the Council did [90]
Did the Council seek to identify all reasonably practicable alternatives and assess the options in terms of their advantages and disadvantages? [94]
Conclusion [106]
Issue two: consultation — did the Council fail to consult with businesses on two key matters? [108]
Issue three: discretion under s 79 — did the Council fail properly to exercise its judgment pursuant to s 79 of the LGA? [124]
Issue four: mistake of fact — did the Council proceed on material errors of fact? [144]
Alleged mistakes of fact [144]
Law on mistake of fact [148]
First alleged mistake of fact — no adverse social or economic impact of reducing the number of parks [151]
Second alleged mistake of fact — comparative safety for cyclists of angled and parallel parks [172]
Issue five: relief [191] Result
[202]
Costs
[204]
Introduction
[1] This case concerns a decision of the respondent, the Wellington City Council (the Council) to reconfigure the parking arrangement on Thorndon Quay, a key transport route into and out of Wellington City, from mainly angled parks, with some parallel parks at various points along the road, to all parallel parks (the Decision).
[2] At the heart of this case, the Council says, is an issue of safety for cyclists travelling along Thorndon Quay. In 2020, the Council received an audit report from Waka Kotahi NZ Transport Agency (Waka Kotahi) highlighting the issue and urging the Council to act to fix the situation. The Council proposed a traffic resolution which would convert all angled parks to parallel parks. Following a consultation process, in June 2021 the Council voted in favour of the resolution. This is the Decision at issue in these proceedings. In September 2021, all parks were then converted to parallel parks.
[3] The applicant, the Thorndon Quay Collective Inc, says the Decision was flawed. It maintains the Decision and this judicial review concern matters of critical importance to the business community on Thorndon Quay. In making the Decision, the applicant maintains the Council failed to follow the correct decision-making procedures under the Local Government Act 2002 (the LGA). The conversion of the parks to parallel parks has had the effect of reducing the number of parks available in the key business areas of Thorndon Quay by between 44 and 47 per cent. That reduction in parks, the applicant contends, is having a detrimental impact on the businesses of its members. Evidence of that impact is provided to the Court from six business owners.
[4] The applicant therefore challenges the Council’s decision in the following respects, alleging that the Council:
(a)failed to identify and assess all reasonably practicable alternatives for the achievement of the safety objective of its decision, as required under s 77 of the LGA;
(b)in breach of the LGA, failed to consult with businesses on two key matters, namely:
(i)an unstated objective that the Council subsequently purported to rely on in making its decision; and
(ii)an internal analysis of alternative options conducted by Council officers;
(c)failed properly to exercise its judgment pursuant to s 79 of the LGA; and
(d)committed material errors of fact in relation to two key assumptions underpinning the Council’s decision, namely:
(i)that the reduction in the number of parks would not have an adverse impact on businesses; and
(ii)that parallel parks would be safer for cyclists travelling along Thorndon Quay than the existing angled parks.
[5] The applicant seeks a declaration that the Decision was unlawful and invalid, an order quashing the Decision, and an order requiring the respondent Council to return all carparks along Thorndon Quay to their configuration before the Decision. The fifth issue in these proceedings concerns whether, as the Council says, relief would be futile because of other changes proposed by a joint local initiative, Let’s Get Wellington Moving (LGWM). The applicant says this is wrong as it seeks to pre-empt decisions that the Council has yet to make.
Background
The parties to this proceeding
[6] The applicant is the Thorndon Quay Collective Inc (TQC), an incorporated society formed in June 2021 to represent the interests of the business community on Thorndon Quay in response to the LGWM project for Thorndon Quay/Hutt Road.1
[7] The respondent, the Council, is a territorial authority constituted under cl 100 of the Local Government (Wellington Region) Reorganisation Order 1989 and listed in pt 2 of sch 2 of the LGA.
LGWM
[8] Though not itself a party to this proceeding, the actions of LGWM are highly relevant background to the Council’s Decision giving rise to these proceedings.
[9] LGWM is a joint initiative between three agencies, namely the Council, the Greater Wellington Regional Council (the GWRC) and Waka Kotahi. The objective of LGWM as set out in its current relationship and funding agreement is to develop a transport system for Wellington that:
(a)enhances the liveability of the central city;
(b)provides more efficient and reliable access for all users;
(c)reduces reliance on private vehicle travel;
(d)improves safety for all users; and
(e)is adaptable to disruptions and future uncertainty.
[10] In May 2019, the Government approved an indicative package of transport reforms by LGWM. LGWM then commenced consultation on a Thorndon Quay/Hutt Road project in May and June 2020.
1 Affidavit of Paul Robinson, 4 May 2022, at [3].
[11] LGWM presented the option of converting the angled parks in Thorndon Quay to parallel parks in an engagement report released in July 2020 (the Engagement Report).2 LGWM described this as “one of a range of possible options for transport reform that were under consideration as part of the LGWM programme”.
[12] On 17 September 2020, LGWM released a parking impact assessment report (the Parking Impact Assessment), which described itself as “an assessment of the potential impacts of changes to parking management along Thorndon Quay and Hutt Road”.3
[13] On 4 November 2020, LGM released a report which narrowed down a long list of options for the Thorndon Quay/Hutt Road project to a short list of options (intended for public consultation). It did so by assessing the options against five investment objectives using a multi-criteria assessment (the Long List Report).4 None of the short-listed options retained angled parking.
The Council’s traffic resolution process
[14] Around the same time LGWM was considering changes to Thorndon Quay/Hutt Road, Waka Kotahi prepared an investment audit report for the Council, in which it commented on the safety for cyclists of the angled parks on Thorndon Quay.5
[15] A public petition was also launched on 22 December 2020 asking the Council to fix what was said to be the unsafe situation for cyclists travelling along Thorndon Quay with little room to ride.
[16] The Council decided it could not wait for the work being done by LGWM on Thorndon Quay/Hutt Road to occur and accordingly it concluded that it needed to do something about the problem of cyclist safety for itself. It proposed a traffic resolution
2 Let’s Get Wellington Moving Thorndon Quay and Hutt Road: Engagement Report (July 2020).
3 Let’s Get Wellington Moving Parking Impact Assessment: Thorndon Quay Hutt Road (17 September 2020) [Parking Impact Assessment Report] at 3.
4 Let’s Get Wellington Moving Thorndon Quay Hutt Road: Long List to Short List Options Report
(4 November 2020).
5 Waka Kotahi NZ Transport Agency Investment Audit Report: Technical and Procedural Audits of Wellington City Council (30 July 2020) [2020 Audit Report] at 19.
which would make several road layout changes it thought would improve the issue, including changing the angled parking to parallel parking (the traffic resolution).
[17] On 14 April 2021, the Council’s Regulatory Process Committee passed a resolution noting that Council officers proposed to time the traffic resolution process to coincide with consultation LGWM was running in relation to changes to Thorndon Quay. This was to begin 10 May 2021.6 However, the resolution noted that, should the LGWM consultation be delayed, their own traffic resolution process would continue regardless.
[18] On 11 May 2021, the Council released a consultation document on the traffic resolution (the Consultation Paper). This proposed to convert all angled parks on Thorndon Quay to parallel parks.7 Thus the Council’s consultation and the consultation by LGWM on its Thorndon Quay/Hutt Road project took place, as one Council witness describes it, as “two processes happening in parallel”.8 These consultations were, however, distinct and relied on separate consultation documents. In particular, the Council at the time also released another document relating to an analysis of crashes and parking (the Parking Analysis Paper).9
[19] Consultation on the traffic resolution was open for 20 working days, that is until 8 June 2021. The applicant requested a two-week extension. An extension was granted but only for two days. During the consultation period, “representatives” from the applicant met twice with representatives from LGWM. (I leave on one side here the fact that, by its own account, the applicant only came into existence the following month, June 2021). Members of the applicant, it appears, said that these meetings were variously difficult, confrontational and unhelpful. The Council responds that, apart from opposition from businesses who now form part of the TQC, the public response was supportive of the proposed change.
6 Minutes of Regulatory Process Committee, 14 April 2021.
7 Wellington City Council TR53-21 Thorndon Quay Pipitea - Convert angled parking to parallel parking (11 May 2021).
8 Affidavit of Sebastian Bishop, 13 June 2022, at [2.7].
9 Wellington City Council Thorndon Quay Crashes & Parking Analysis (11 May 2021) [Parking Analysis Paper].
[20] The Council, it appears, has delegated responsibility for making decisions on “significant traffic resolutions” to the Council’s Planning and Environment Committee (the Committee). The Committee comprises all elected members of the Council. The Committee received a Council officer’s report on the traffic resolution summarising the submissions that had been received, including the submission made by the applicant. At a meeting held on 22 June 2021, the Committee heard oral submissions on the issue from the applicant and from Cycling Action Network, each for 30 minutes. Then, on 24 June 2021, the Committee met to consider the traffic resolution. At that meeting, the Committee passed the traffic resolution by a majority vote of 10:5 (the Decision). As I note above at [2], this is the Decision now at issue in these proceedings.
[21] The Council then implemented the Decision and converted all the parks on Thorndon Quay to parallel parks over a period of two weeks in September 2021.
[22] Thereafter, the applicant sought first to engage with the Council at a political level. It collected 1,456 signatures for a petition asking the Council to conduct an independent review of the social and economic impact of the Decision. On 15 December 2021 the Council rejected the applicant’s petition and the applicant filed these proceedings for judicial review on 23 December 2021.
[23] The Council advises the Court that since this proceeding commenced, LGWM has now determined the concept road design for Thorndon Quay/Hutt Road, and has confirmed funding for it. Detailed design of the concept I am told is now underway. The new road layout, however, includes a bi-directional cycleway, a dedicated bus lane towards the city, footpath and streetscape improvements, and on-street parallel parking. The Council says the concept does not include any angled parking. The construction works, according to the Council, are expected to commence as early as March 2023.
Grounds of review
[24] As noted above, the applicant TQC challenges the Council’s decision in four respects. It does so under three heads of review.10
[25] The first ground of review concerns the Council’s failure to identify and assess all reasonably practicable options. The TQC says the Decision was legally flawed because the Council failed to, or failed adequately to, comply with the requirements of the LGA. Under s 77 of the LGA, the Council has a duty when making decisions to seek to identify all reasonably practicable options for the achievement of the objective of the decision and to assess the options in terms of their advantages and disadvantages. The applicant says that neither the Council, nor the Committee, to which it delegated responsibility for making the Decision, complied with these requirements.
[26] TQC says the stated objective of the Decision was to improve safety for cyclists travelling along Thorndon Quay by reducing conflicts between cyclists and motorists using the angled car parks. However, TQC maintains that, when making the Decision, the Council only considered angled parking conversion as a means for achieving that stated objective and did not seek to identify alternative options for achieving this. The TQC contends the Council did not assess the reasonableness of any alternative options, including their advantages and disadvantages.
[27] The TQC says the Council did not assess angled parking conversion in terms of its advantages and disadvantages, including:
(a)the evidence that it would improve road safety for cyclists and other road users, and reduce social costs related to injuries;
(b)the social and economic impacts of the change, including the disproportionate burden on members of the applicant; and
10 The reason for the difference in numbering appears to be that the first ground of review encompasses the applicant’s challenge to the Council’s exercise of discretion under s 79 of the LGA, which is also described by the parties as a discrete issue and which I therefore assess as such as a discrete third main issue in this judgment.
(c)new safety hazards it would introduce for cyclists and other road users, including hazards resulting from the parallel parks and from the new road configuration.
[28] The TQC also says the Council failed to comply with the requirements of the LGA by: failing to make a judgment under s 79 of the LGA in relation to the Decision; failing to have sufficient information lawfully to make such a judgment; or, alternatively, making a judgment under s 79 of the LGA that was not in proportion to the significance of the Decision and was therefore unlawful.
[29] The second ground of review alleges that the Council failed to consider views and preferences of persons affected by the Decision in accordance with the LGA. The TQC contends the Council has a duty under the LGA to give consideration to the views and preferences of persons likely to be affected by, or who have an interest in, its decisions. The TQC maintains the Decision was invalid and unlawful because the Council failed to, or failed adequately to, comply with its duty, including by failing to:
(a)make publicly available an analysis of the reasonably practicable options that Council officers had identified;
(b)provide relevant data in a timely manner after it had been requested;
(c)identify the nature of the perceived safety risk to cyclists during the consultation period;
(d)allow a reasonable time for preparation of an empirical submission;
(e)maintain an open mind during consultation; and
(f)have regard to the significant likely impact of angled parking conversion from the perspective of TQC members.
[30] The third ground of review relates to the Council’s alleged failure to accurately assess the social and economic impacts of the Decision. The applicant says the Decision was legally flawed. This was because it was based on material errors,
including reliance on incorrect conclusions, improper comparisons and incorrect analysis.
[31] I note that pre-determination by the Council was not pleaded at all. While the intentions and actions of Waka Kotahi and LGWM were relevant and important, there was no suggestion made by the TQC that the Decision of the Council was pre-determined in any way.
Relief sought
[32]The TQC seeks the following relief:
(a)a declaration that the Decision was unlawful and invalid;
(b)an order quashing the Decision;
(c)an order requiring the Council to return all carparks along Thorndon Quay to their configuration before the Decision;
(d)such other relief as the Court thinks just; and
(e)costs.
[33] All parties accept that, in the event the Court finds a material error has been made, a declaration to that effect (as described in [32](a) above) would be appropriate.
[34] However, the Council also raises as an affirmative defence that even if the Court finds that the Decision was flawed, the Court should exercise its remedial discretion against making the other orders sought. Specifically, the Council contends the Court in any event should exercise its discretion against quashing the Council’s decision, or alternatively, if at all, it should do so only on a prospective basis, given the effect quashing the Decision would have on parking revenue. This is on the basis too that any such remedy ordered by the Court would be futile because, by the time the Court came to consider the application, the Council and LGWM would have determined the future layout of Thorndon Quay. The Council submits that at the time
the Council made the Decision, it knew the effect of the Decision would be interim until the implementation of the Thorndon Quay/Hutt Road project.
[35] The Council suggests there are two other factors, in addition to foregone parking revenue, in favour of the Court exercising its discretion in this way. First, the Council says that given the evidence from two road safety experts that the current configuration is safer for cyclists, their safety should not be put at unnecessary risk by reverting to the former configuration in the interim. Second, the Council maintains that quashing the decision will have other effects, such as requiring further consultation and data evaluation and having to refund revenue collected since the Decision was implemented. This, it says, would cause significant administrative inconvenience and waste.
[36] In response, TQC maintains these concerns are not sufficient to decline relief for an unlawful exercise of public power. It contends the courts do not generally decline relief simply because it is perceived to be futile, and further, that if it were otherwise, this would undermine the rule of law requiring a decision-maker to respond to a finding that it acted unlawfully, even if the outcome is ultimately the same.
Principles of judicial review
[37] I turn now to consider the principles by which this judicial review proceeding is to be addressed.
[38] It is well-established that in a judicial review the Court does not review the merits of the conclusion reached by a decision-maker. The focus is on the process by which the conclusion was reached. As Cooke J said in Patterson v District Court, Hutt Valley:11
… In every judicial review case the Court’s role is to review whether a decision is made in accordance with law. In all cases it does so in the same dispassionate way …
[39] In New Zealand Forest Owners Association Inc v Wairoa District Council, Grice J noted that the courts have approached judicial review in New Zealand “bearing
11 Patterson v District Court, Hutt Valley [2020] NZHC 259 at [16].
in mind that it is a supervisory jurisdiction to ensure that powers are exercised in accordance with law.”12 Along similar lines, in Coromandel Watchdog of Hauraki (Inc) v Minister of Finance, Simon France J commented that judicial review was intended to be a comparatively simple process of “testing that public powers have been exercised after a fair process, and in a manner, which is both lawful and reasonable.”13 The limitations of those powers are then to be ascertained from the statute or other regulation which bestows them, which also gives the extent of the decision-making freedom provided.14
Error of law
[40]The Supreme Court has described an error of law in the following way:15
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law: proper application of the law requires a different answer …
[41] According to the Supreme Court there, that will be the position only in the rare case where there has been a state of affairs in which:16
(a)“there is no evidence to support the determination”; or
(b)“the evidence is inconsistent with and contradictory of the determination”; or
(c)“the true and only reasonable conclusion contradicts the determination”.
[42] Case law also puts the test of an error of law as whether the finding was “open” to the authority,17 or otherwise in terms of unreasonableness. In Hu v Immigration and
12 New Zealand Forest Owners Association Inc v Wairoa District Council [2022] NZHC 761 at [19].
13 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13], citing BNZ Investments Ltd v Commissioner of Inland Revenue HC Te Whanganui-a-Tara | Wellington CIV-2006-485-697, 7 December 2006 at [15].
14 Patterson v District Court, Hutt Valley, above n 11, at [14]–[15].
15 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
16 At [26], citing Edwards v Bairstow [1956] AC 14 at 36.
17 Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).
Protection Tribunal, Palmer J stated in relation to an error of law in a judicial review context:18
Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts. Unremarkably, unreasonableness, also termed irrationality, is to be found in the reasoning supporting a public decision.
Unreasonableness
[43] In Aorangi School Board of Trustees v Ministry of Education, French J reiterated the well-known test for unreasonableness in public law terms as follows:19
[100] In considering the reasonableness of a decision, the orthodox test is that the applicant must show the decision was so unreasonable no rational decision maker could have come to it …
[44] Unreasonableness arises only where a decision maker comes to a decision that no reasonable decision maker could have reached, a decision which lies “outside the limits of reason”.20 As has been noted elsewhere, it is clearly a high threshold to meet.21
[45] For the ultimate decision of a local authority to be invalidated as “unreasonable”, it must be so “perverse”, “absurd” or “outrageous in [its] defiance of logic” that Parliament “could not have contemplated such decisions being made by an elected council.”22 In Wellington City Council v Woolworths New Zealand Ltd (No 2) the High Court had granted relief to the applicants, making a declaration that the Council acted unreasonably and unfairly towards them.23 However, it was common ground that the Council had: weighed all the relevant considerations; not had regard to irrelevant considerations; consulted adequately; followed all the appropriate statutory procedures and processes; and made its decisions in good faith and in what
18 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2].
19 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC).
20 Criminal Bar Association of NZ Inc v Attorney-General [2013] NZCA 176 at [136].
21 The Ink Patch Money Transfer Ltd v Reserve Bank of New Zealand [2022] NZHC 1340 at [38].
22 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552.
23 At 539.
it judged to be the best interests of the city and its ratepayers.24 On appeal, accordingly, the Court of Appeal allowed the appeal.
[46] Though dealing with a discrete issue with other prescriptive requirements, the decisions of local authorities have come under significant review in the context of rating decisions. In Waitakere City Council v Lovelock, the Court of Appeal confirmed the approach of the Court in Wellington City Council v Woolworths New Zealand (No 2)25. In the Waitakere City Council case, which concerned a decision to introduce a differential rating for higher valued, inner-city residential properties, the High Court had set the decision aside as unreasonable. However, the Court of Appeal was of the view the decision made by the Council was not beyond the bounds of reasonableness.26 The Court found that the rating committee had canvassed the issues thoroughly and it was aware of the steepness of the rating curve and the inequities alleged by the high value property owners.
[47] As the Court of Appeal said there, the test for impugning the rating determination was a high one on the grounds of unreasonableness,27 and only in an extreme case would the court interfere. A court could intervene only if the decision of the Council was irrational or such that no reasonable body of persons would have arrived at that decision. A review was not an appeal on the merits, the Court of Appeal confirmed, and proper respect had to be given to the role and responsibilities of democratically elected councils.28
[48] It should be noted, however, these comments were made in relation to the technical area of rating decisions. The Court of Appeal there said a less restrained approach may be taken against other types of Council decision.29
24 At 552.
25 At 397.
26 Waitakere City Council v Lovelock [1997] 2 NZLR 385(CA) at 397.
27 At 397 and 419.
28 At 396–397 and 419.
29 At 420.
Consultation
[49] In relation to consultation, the Court in Wellington International Airport Ltd v Air New Zealand held that consultation did not require agreement, nor did it necessarily involve negotiation toward an agreement, although that might occur.30 However, consultation was more than mere prior notification. If the person having the power to make the decision was required to consult, for consultation to be meaningful, the other party must have available to it “sufficient information to enable it to be adequately informed so as to be able to make intelligent and useful responses”.31
[50] A decision-maker has a duty to consult properly and with an open mind before making any final decision.32 The decision-maker must provide a proper opportunity to the person consulted to put any matters forward that they wished to,33 and the decision-maker must take due notice of what is said.34 The proposal must not have been finally decided upon in advance, and the decision-maker must listen to what others have to say, properly considering their responses, and only then saying what will be done.35
[51] In Aorangi School Board of Trustees v Minister of Education, French J pointed out a number of aspects of consultation as follows:36
(a)consultation is context-specific, and its content and nature is determined by the relevant statutory scheme and objectives;
(b)consultation is not negotiation — the essential requirement is open-minded communication. The decision-maker must genuinely provide a meaningful opportunity, to those who are given the right to be heard, to identify and advocate their arguments in relation to the proposal;
30 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).
31 At 676.
32 At 683.
33 At 683.
34 At 684.
35 At 675.
36 Aorangi School Board of Trustees v Ministry of Education, above n 19, at [36].
(c)the consultees must be sufficiently informed as to the material facts and issues so as to be able to make an intelligent and useful response; and
(d)the extent and nature of the necessary consultation should be proportionate to the significance of the proposal.
[52]The question, as French J put it:37
… is really whether those whose views were being elicited knew and understood what they were being asked about, knew what the issues were and had sufficient information to provide an intelligent and useful response.
Review of a local authority’s decision-making
[53] The Court of Appeal has emphasised that in a judicial review, the Court does not substitute its own decision for that of the decision-maker.38 In C P Group Ltd v Auckland Council, the Court said that it first examined the scheme of the legislation and the nature and scope of the Council’s powers and statutory processes before turning to the decision.39
[54] Similarly, as Cooke J noted in Patterson v District Court, Hutt Valley, “[m]ost judicial review involves the Court assessing whether a decision is made in accordance with the express and implied requirements of the empowering instrument, both in terms of the substantive decision and the procedures followed to reach it.”40
[55] In both Wellington City Council v Woolworths New Zealand Ltd (No 2) and Waitakere City Council v Lovelock,41 the Court of Appeal proceeded in its analysis of the decisions of each council in this way. First, it set out the scheme of the legislation to determine the nature and scope of the council’s powers and the statutory processes governing their exercise. Secondly, it turned to review the relevant facts, including the processes followed by the council and then the decisions in question, to determine
37 At [42].
38 C P Group Ltd v Auckland Council [2021] NZCA 587 at [83].
39 At [84], citing Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).
40 Patterson v District Court, Hutt Valley, above n 11, at [14].
41 Wellington City Council v Woolworths New Zealand Ltd (No 2), above n 22; and Waitakere City Council v Lovelock, above n 39, at 390.
whether the respective council had discharged its legal responsibilities. This is the approach I now propose to adopt.
[56] In the present case, the empowering instrument, which confers powers on the Council, which contains limitations on those powers, and which describes the nature and scope of the Council’s powers and the statutory processes to be followed, is the LGA.
[57] It is appropriate that I now detail the decision-making process requirements the Council here was obligated to follow under the LGA.
Decision-making process requirements under the LGA
[58] The LGA provides the framework for local government decision-making.42 Under the LGA, there are a number of substantive principles and mandatory procedures a local authority must follow in performing its decision-making functions. These obligations are in place to reflect the purpose of local government,43 which is to enable democratic local decision-making and action by, and on behalf of, communities, and to promote the social, economic, environmental, and cultural well- being of communities in the present and for the future.44
[59] Section 14 of the LGA outlines the principles a local authority must act in accordance with in performing its functions, including its decision-making. A local authority should conduct its business in an open, transparent, and democratically accountable manner, and give effect to its identified priorities and desired outcomes in an efficient and effective manner.45 It should make itself aware of, and should have regard to, the views of all of its communities.46 When making a decision, a local authority should take account of the diversity of the community, and the community’s
42 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228, [2021] NZLR 280 [55].
43 See Kenneth Palmer Local Government Law in Aotearoa New Zealand (2nd ed, Thomson Reuters, Wellington, 2022) at [5.10.1].
44 Local Government Act 2002, s 10.
45 Section 14(1)(a).
46 Section 14(1)(b).
interests, the interests of future as well as current communities, and the likely impact of any decision on each aspect of wellbeing, as I noted at [58] above.47
[60] The constitution of committees and subcommittees, and the delegation of functions to those committees and officers to facilitate council business, is a long- standing convention and practice of local government.48 The LGA allows a local authority to delegate to a committee any of its responsibilities, duties or powers apart from certain powers listed in that section. In this case, the Council delegated responsibility for making the Decision to the Committee. There is no issue with this delegation.
[61] Part 6 of the LGA sets out the obligations of local authorities in relation to the making of decisions. Section 76 is the key provision relating to every decision made by a local authority. Section 76(1) provides that every decision made by a local authority under the LGA must be made in accordance with the provisions of ss 77 (requirements in relation to decisions), 78 (community views), 80 (identification of inconsistent decisions), 81 (contributions by Māori) and 82 (consultation) as applicable. Under s 76(2), however, the obligations in ss 77 and 78 are subject to the judgments of the local authority under s 79 (compliance discretion).
[62] Section 76(3) provides that a local authority must ensure that its decision- making processes “promote compliance” with subs (1), and in the case of a “significant” decision, that subs (1) has been “appropriately observed”. Subsection
(3) thus creates in respect of a local authority’s decision-making under subs (1) what the Court of Appeal in Minotaur described as “two standards of performance”.49 As the Court of Appeal said there, the first, and higher, standard is to ensure that in respect of “significant decisions”, the provisions contained in subs (1) have been “appropriately observed”. The second, lower, standard applies in respect of a decision which is not “significant”, in which case decision-making is only required to “promote compliance” with those provisions.
47 Section 14(1)(c).
48 Palmer, above n 43, at [5.8].
49 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at [33].
[63] In terms of the LGA, “significant”, in relation to any “issue, proposal, decision, or other matter” means it “has a high degree of significance”.50 It is a key aspect of the present case that the Decision was one of “medium significance”, that is, not a “significant” decision. This assessment is not now and has never been challenged. This means the Council was required to ensure that its decision-making processes “promote[d] compliance with” the requirements for decision-making under s 76(1), subject to its judgments made under s 79. The Council did not necessarily need to ensure, however, that all provisions had been “appropriately observed”.
[64] Section 77 lists certain requirements in relation to decisions (which, however, is subject to s 79).51 Under subs (1), a local authority must, in the course of the decision-making process, relevantly here:
(a)seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b)assess the options in terms of their advantages and disadvantages.
[65] Subject to the discretion relating to the level and depth of compliance, under s 77(1) a local authority must therefore identify all reasonably practicable options for the achievement of the objective of the decision, and assess those options.52
[66] Section 78 provides, in relation to community views, that a local authority must, in the course of its decision-making process, give consideration to the views and preferences of persons likely to be affected by, or who have an interest in, the matter. However, a local authority is not required to undertake any consultation process or procedure under this section alone.53 And again, this is subject to s 79.54
50 Local Government Act, s 5(1) definition of “significant”.
51 Section 77(2).
52 See Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council [2009] 2 NZLR 123 (HC); Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR 799 (HC) [Whakatane (HC)]; Island Bay Residents’ Association v Wellington City Council [2019] NZHC 1240, [2020] NZRMA 157; and Friends of Onekawa Aquatic Centre Society Inc v Napier City Council [2020] NZHC 850.
53 Section 78(3).
54 Section 78(4).
[67] Section 79 provides a qualified discretion to make judgments about compliance based on proportionality with the significance of the decision to be made. Under s 79(1), it is the responsibility of a local authority, in its discretion, to make judgments about:
(a)how to achieve compliance with ss 77 and 78 that is largely in proportion to the significance of the matters affected by the decision; and
(b)in particular:
(i)the extent to which different options are to be identified and assessed;
(ii)the degree to which benefits and costs are to be quantified;
(iii)the extent and detail of the information to be considered; and
(iv)the extent and nature of any written record to be kept of the manner in which the local authority has complied with ss 77 and 78.
[68] In making these judgments, the local authority must have regard to the significance of all relevant matters, as well as to the s 14 principles set out above, the extent of the local authority’s resources, and the extent to which the nature or circumstances of a decision allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.55
[69] In Whakatane District Council v Bay of Plenty Regional Council, the Court of Appeal observed that a court will not interfere with a discretionary judgment under s 79 unless it is irrational or made on a wrong legal principle.56 In Minotaur, the Court
55 Section 79(2).
56 Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 [Whakatane (CA)] at [76].
of Appeal stated the sections give local authorities “a deliberately broad discretion as to whether to consult, and if so, how”.57
[70] The judgment of this Court in Friends of Turitea Reserve Society Inc v Palmerston North City Council related to the decision of the Palmerston North City Council to allow the establishment of a wind farm on local reserve land it owned. In that case, Baragwanath J in addressing ss 78 and 79 stated:58
[122] Subject to the principle of proportionality, these principles are to be observed by a local authority in such a manner as it considers to be appropriate in a particular instance. It is bound to have regard to the requirements of s 78 and to the extent to which the current views and preferences of affected or interested persons are known and the nature and significance of the decision or matter, including its likely impact from the respective persons who will or may be affected by or have an interest in the decision or matter …
[71] A council typically has a discretion as to the process and level of consultation undertaken.59 Where a local authority does undertake consultation in relation to any decision, s 82(1) provides that it must do so in accordance with the principles of consultation set out in s 82. Those principles include that:
(a)persons who may be affected by, or have an interest in, a decision should be:
(i)provided by the local authority with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of those persons;60 and
(ii)encouraged by the local authority to present their views to the local authority;61
57 Minotaur, above n 49, at [42].
58 Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC) (emphasis added).
59 Local Government Act, s 78(3); Friends of Onekawa Aquatic Centre Society Inc v Napier City Council [2020] NZHC 850; Whakatane (CA), above n 56; Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC) at [12]; Minotaur, above n 49; and Island Bay, above n 52.
60 Section 82(1)(a).
61 Section 82(1)(b).
(b)where persons are invited or encouraged to present their views to the local authority, they “should be given clear information by the local authority concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented”;62
(c)persons who wish to have their views considered “should be provided by the local authority with a reasonable opportunity to present those views to the local authority in a manner and format that is appropriate to the preferences and needs of those persons”;63
(d)the views presented to the local authority “should be received by the local authority with an open mind and should be given … due consideration”;64 and
(e)persons who present views to the local authority should have “access to a clear record or description of relevant decisions made by the local authority and explanatory material relating to the decisions”.65
[72] These principles are to be observed by a local authority “in such manner as the local authority considers, in its discretion, to be appropriate in any particular instance.”66 In exercising its discretion in this way, however, the local authority must nevertheless have regard to, amongst other things, the requirements of s 78, the extent to which the current views of those affected are known, and the nature and significance of the decision, including its likely impact.67
[73] In Whakatane District Council v Bay of Plenty Regional Council, the Court of Appeal found that the decision by the regional council to relocate its principal office
62 Section 82(1)(c).
63 Section 82(1)(d).
64 Section 82(1)(e).
65 Section 82(1)(f).
66 Section 82(3).
67 Section 82(4).
was unlawful as it had inadequately considered submissions at relevant stages of the decision-making process.68
[74] Island Bay Residents’ Association v Wellington City Council involved a dispute over a cycleway development.69 The Court found that there was no obligation on the Council to require a concept design to undergo a prior peer review or to develop further options, that a short timeframe for public comment was adequate, that preferences or majority views expressed by the community were not determinative, and there was no legitimate expectation established.
[75] An obligation to consult may be more apparent in relation to council decisions with direct financial consequences for residents. In Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, which considered a substantial rent increase to public housing to be a significant decision, this Court held the Council’s decision to be unlawful for failure to consider practicable options.70
[76] The leading decision on the obligations of local authorities in undertaking consultation is Minotaur.71 That case concerned whether the Council there had adequately considered the views of the community when making a change in parking entitlements. The Court of Appeal there took a robust approach in finding sufficient compliance with the consultation provisions under the LGA. In doing so, it summarised the effect of s 82 in the following way:
[38] The effect of this provision [s 82] is that, when a council does choose to consult, certain “principles” apply to the particular forms of consultation the council adopts: most relevantly, those affected should have access to relevant information in an appropriate format and be encouraged to present their views having been given clear information as to both the purpose of the consultation and the scope of any likely decision. Further, a council must ensure that interested or affected parties have a reasonable opportunity to present their views, and that those views are received by council with an open mind.
[39] In substance, these principles are really basic performance standards. Subsection (3) is the counterweight. This restates (now for the third time) that the “how” of compliance with these guidelines is a matter for the local
68 Whakatane (CA), above n 56. It should be noted, however, that the obligations under s 78 have been reduced since the decision in this case.
69 Island Bay, above n 52.
70 Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52.
71 Minotaur, above n 49.
authority. That proposition is subject to the following further considerations which the local authority must (relevantly) bear in mind:72
(a)the terms of s 78 including, presumably, the fact that it is subject to the reservation to the local authority of the decision of how to implement;
(b)whether the views of those affected are already known to the local authority;
(c)the significance of the issue in question for those affected; and
(d)the costs and benefits of consultation.
[77] The Court of Appeal then reproduced s 79 in full and commented that it “begins with the position that it is for the local authority to decide in its discretion how ss 77 and 78 are to be complied with – the fourth such restatement of that principle in Part 6.”73
[78]Finally, the Court stated:
[42] In summary, Part 6 of the LGA carefully and repeatedly rejects the idea that there is to be found in its provisions any duty to consult with affected or interested parties. Instead, local authorities are given a deliberately broad discretion as to whether to consult, and, if so, how. That does not mean, however, that there are no limits on a council’s discretion. Like all statutory decisions, consultation decisions must be rational and consistent with the objects of the LGA and the particular controlling provisions.
[79] The decision in Minotaur was applied recently by Wylie J in Mt Wellington Race Park Club Inc v Auckland Council:74
[99] The principles articulated in Wellington City Council v Minotaur Custodians Ltd have been followed in a number of subsequent cases, all of which emphasise the discretion afforded to local authorities about how to consult, and avoid engaging in intense scrutiny of the decision-making processes involved.75
[80] Wylie J went on to consider there that consultation does not require the local authority to accept or agree with the submissions made. In that case Wylie J was
72 Local Government Act, s 82(4).
73 Minotaur, above n 49, at [41].
74 Mt Wellington Race Park Club Inc v Auckland Council [2020] NZHC 1245, [2020] NZRMA 469.
75 Evans v Clutha District Council [2020] NZCA 5, [2021] NZRMA 374; Gwynn v Napier City Council [2018] NZHC 1943; Friends of Onekawa Aquatic Centre Society Inc v Napier City Council, above n 59; and Save Chamberlain Park v Auckland Council [2018] NZHC 1462.
satisfied the Council had met the standards of consultation required. His Honour stated:76
[102] In my view, the Council and AT broadly observed the consultation principles set out in s 82. The evidence suggests that the Council and AT were aware of and understood the views and preferences of the other users. The Council and AT understood the nature and significance of their decision to lease the property on commercial terms on the other users. Relevant information was made available to the other users. They had every opportunity to present their case. There is nothing to suggest that the Council and AT listened to those views with anything other than an open mind. In particular, the meeting called by Councillor Hulse afforded the opportunity for the Council to change its mind and allow the property to be leased to AMCC for use by it and others.
[103] In the round, in my view the actions of the Council and AT met the standards expected of a local authority. The fundamental problem for MWRPC is not that the views of its members were not heard and considered— they plainly were. Instead the other users’ complaint is that the Council and AT did not agree with their views. There is force in the Council’s argument that these proceedings have been brought in an attempt to obtain what persuasion could not achieve.
[81] The learned author of Local Government Law in Aotearoa New Zealand, Mr Kenneth Palmer, notes also in his recent book: “None of the decision-making obligations requires or binds the local authority to accept the weight of submissions, views or preferences of the community or other persons consulted.”77 Palmer also goes on to comment:78
… Consultation is not the same as negotiation. The consultees should be given adequate information to know what is proposed, and be given a sufficient opportunity to express views and make useful responses. The receiving body should be informed of and assess the matters with an open mind, but is not bound to respond to individual submitters or identify individual matters …
Analysis — Did the Council follow the correct legal process in making its decisions in question?
[82] Having traversed in some depth the LGA decision-making process requirements for which the Council was obliged to “promote compliance” in making the Decision, I turn now to my analysis.
76 Mt Wellington Race Park Club Inc v Auckland Council, above n 74.
77 Palmer, above n 43, at [5.10.7], citing Whakatane (HC), above n 52; Island Bay, above n 52; and
Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council, above n 42.
78 Palmer, above n 43, at [5.10.9].
[83] The applicant says there are five issues in this proceeding before the Court. The first three relate to the statutory process ground, the fourth to material errors of fact, and the final issue concerns the relief which is sought.
Issue one: reasonably practicable alternatives — did the Council fail to identify and assess all reasonably practicable alternatives for the achievement of the safety objective of its decision?
[84] The applicant TQC says the Council failed to identify and assess all reasonably practicable alternatives for the achievement of the safety objective of its decision, as it was required to do by s 77 of the LGA. TQC says the Council consulted only on its preferred option and the Committee made no assessment of alternative options.
[85] As I have noted, under s 77(1), the Council was required in the course of its decision-making process (subject to its discretion under s 79), to (a) to seek to identify all reasonably practicable options for the achievement of the objective of a decision; and (b) to assess the options in terms of their advantages and disadvantages.
The objective of the Decision
[86] The Council clearly identified the objective of the traffic resolution in its Consultation Paper. Under the heading “Why we are proposing the change”, the Council stated:79
·Thorndon Quay is a major arterial transport thoroughfare for Wellington City linking the Wellington Central Business District (CBD) to the State Highways and the northern suburbs. It has approx. 30,000 – 50,000 people moving through it daily.
·With the increase in people cycling along Thorndon Quay, the number of injuries incidents relating to cyclists have increased over the last five years. A major contributor to incidents on Thorndon Quay relates to conflicts between cyclists and motorists using the angled car parks particularly in the section between Moore Street and Tinakori Road.
·Changing the parking layout from angled to parallel will improve safety for cyclists along this section of Thorndon Quay.
79 Emphasis added.
[87] In my view, the emphasised passage clearly illustrates the objective of the Decision. Indeed, the applicant appears to accept it was this safety hazard on which the Council chose to consult.
[88] The applicant TQC, however, then points to comments it says reveal a distinct objective, namely to resolve the lack of lateral space available to cyclists between angled parking spaces and the moving vehicles. However, as I see it, this is clearly the same objective. Both concern the safety of cyclists travelling along Thorndon Quay.
[89] I am satisfied the objective of the Decision was to improve the safety of cyclists travelling along Thorndon Quay.
What the Council did
[90] Having identified that objective, it was then incumbent on the Council under s 77(1) to identify and assess all reasonably practicable options for achieving that objective.
[91] Mr Brad Singh (Mr Singh) at the operative time was the Council’s Transport Manager. He is a senior employee of the Council. It transpires that after the Council received the 2020 Waka Kotahi Audit Report highlighting the danger to cyclists on Thorndon Quay, he was instrumental in determining that the Council should explore how to improve safety.
[92] According to Mr Singh’s evidence, he and his team considered various options over the course of five meetings or workshops. These options included: changing the angles of the existing angled parking; using “reverse in” angled parking; installing mirrors; changing clearway times; and installing another clearway.
[93] It appears Mr Singh and his team discarded certain options for various reasons, including impracticality, not adequately reducing safety risk, high cost, or potential conflict with the LGWM options. Ultimately two reasonably practicable options were
identified.80 The first was to change the configuration from angled parking to parallel parking until LGWM made further changes. The second was the status quo until LGWM made changes.
Did the Council seek to identify all reasonably practicable alternatives and assess the options in terms of their advantages and disadvantages?
[94] The applicant TQC submits that it was wrong that various options were discarded by Mr Singh and his team as not reasonably practicable rather than by the Committee itself. However, I accept the respondent’s submission that there is nothing unlawful in options being considered and discarded as not reasonably practicable by Council officers. The legislation does not require that the specific decision-maker has before them all options. Rather, it requires that the local authority seek to identify all reasonably practicable options. I consider there is a certain amount of discretion available to the Council in terms of how it chooses to do this. There is nothing preventing the Council from “seeking to identify” all reasonably practicable options through one of its officers. Indeed, it is strongly arguable that there is a greater chance of the Council identifying all reasonably practicable options if this work is done by an experienced officer within whose job description such a task falls. In my view, if the Council utilises one of its officers to identify all reasonably practicable options, and the officer then presents to the specific decision-maker the results of their identification of all reasonably practicable options, it will have fulfilled the requirement under s 77 to “seek to identify” such.
[95] The Island Bay case in my judgment supports this view. In that case, four reasonably practicable options for the implementation of a cycleway in Island Bay had been developed for consultation by Tonkin + Taylor, a consultancy engaged by the Council. The Judge in that case saw no issue with these “reasonably practicable” options being developed by an external consultancy.81
[96] While the TQC in the present case endeavours to rely on the decision in Council of Social Services in Christchurch/Otautahi Inc to support its argument in this regard, in that case the issue was that the Council had failed to explore to any real
80 Affidavit of Mr Bradley Singh, 6 June 2022, at [4.5]–[4.6].
81 Island Bay, above n 52, at [82]–[86].
degree an option it had already identified as reasonably practicable and then it made its decision before receiving information from the Government necessary to evaluate that option.82
[97] I note too that in that case Chisholm J expressly recognised the Council was only required to identify “reasonably practicable” options, which “[i]nevitably” involves an exercise of judgment by the local authority.83 As his Honour went on to say, “the Court cannot be expected to intervene where the judgment reached by the local authority about whether an option was reasonably practicable was open to it.”84
[98] I accept that in the present case the Council did identify the reasonably practicable alternatives through the work of Mr Singh and his team.85 I accept that while Mr Singh and his team had a clear preference between the two alternatives for the first option, both were potential outcomes if the Committee decided not to adopt the traffic resolution. It was not necessary to include in the Consultation Paper or the Parking Analysis Paper the other options which had been identified and then discarded as not practicable. Indeed, listing these unviable options would simply have created confusion and problematically have gone against the very idea of proper consultation with the public.
[99] And, as to whether the Council fulfilled the requirement to then “assess” the options and their advantages and disadvantages, I am also satisfied this occurred here.
[100] Perhaps somewhat unusually for a matter such as this, transcripts of Committee meetings were made and have been made available to the Court. These demonstrate that Mr Singh was questioned extensively at the Committee meeting held on 21 June 2021, and was specifically asked about the assessment of the options. As the evidence confirms, Mr Singh proceeded to give a full account of his reasoning. I am satisfied, given the fact that the Committee, having heard Mr Singh’s reasoning, then went on to vote in favour of the Decision, that the majority of Committee members
82 Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52.
83 At [51].
84 At [51].
85 I note also at this stage in passing the opinion of Mr Paul Durdin, who confirms that in his opinion the alternatives proposed by the applicant were not reasonably practicable: affidavit of Mr Paul Durdin, 14 June 2022, at [7.2]–[7.4].
who voted in favour of the traffic resolution were satisfied by his assessment of the options.
[101] It is also, as I see it, not for this Court on judicial review now to second-guess why the Council did not consider some options as reasonably practicable. I am satisfied that in this case there is a proper evidentiary basis explaining why the Council proceeded as it did.
[102] But, in any case here, while the Committee properly proceeded on the basis of the work of Mr Singh and his team, the Committee also, as I understand the position, did have before it the alternative options the applicant TQC claims the Council had not considered in its consultation. From Mr Singh’s evidence, he and his team had considered the majority of these alternative options in their meetings and workshops in any case, and discarded them as not reasonably practicable. The Committee then expressly asked Mr Singh whether alternative options had been considered. Mr Singh’s evidence is that he “listed some of the options and provided reasons as to why [they] had rejected those particular options”.86
[103] I have read the transcript from the Committee hearing and I am satisfied that Mr Singh’s explanations as to why they discarded certain alternative options — including those proposed by the applicant TQC — as not reasonably practicable, was sufficiently fulsome here. Although Mr Singh did not explain the nature of the workshops he and his team undertook, he was not required to. It is necessary only that the Committee was properly satisfied that Mr Singh and his team had undertaken an adequate analysis into whether all reasonably practicable alternatives had been considered, and assessment made of their advantages and disadvantages.
[104] I am satisfied the fact the Committee heard Mr Singh’s views expressed for his team and then voted in favour of the traffic resolution demonstrates sufficient assessment of the advantages and disadvantages of the alternative options proposed. Weighing up the advantages and disadvantages of options is something people — particularly Councillors experienced in such matters — necessarily do as part of voting
86 Affidavit of Mr Singh at [4.20].
on a proposal. This is particularly the case where the options as here are either a proposed change or retaining the status quo.
[105] In the Council of Social Services in Christchurch/Otautahi Inc decision, as I note above, Chisholm J found that a local authority’s decision was “not in conformity with the statutory regime” in circumstances where it had failed to assess all reasonably practicable options on a decision to increase rents for low-cost housing it owned.87 However, I am satisfied that case involved a different scenario, in which the local authority was unable to adequately do so until it had received necessary information from the Government, which in fact it did not wait to receive before making its decision. That is an entirely distinct set of circumstances from the present situation.
Conclusion
[106] The applicant TQC argues that error occurred here in that the Committee did not have before it the information it would have needed to make its own assessment of the advantages and disadvantages of all the reasonably practicable options for achieving the objective of the decision it made. I do not accept this. The Committee explicitly raised with the Council officer Mr Singh the question of whether he and his team had considered alternative options. It then heard his evidence as to why certain alternative options had been discarded as not reasonably practicable. There is evidence in the form of the transcript of the Committee meeting demonstrating this. In the terms described in Minotaur, there is therefore an evidentiary basis explaining why the Council proceeded as it did.88 In these circumstances I am satisfied the Council, through the Committee as its delegated authority body, sought to identify all reasonably practicable alternatives for the achievement of the objective of the Decision, and assessed the advantages and disadvantages of those options.
[107] It is not for this Court on judicial review to undertake an assessment of all options that were available to the Council in achieving public safety on Thorndon Quay. It is the role of the Court to assess whether the Council, through its delegate the Committee, had satisfied itself that in making its decision it had before it
87 Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52, at [59]–[67].
88 Minotaur, above n 49, at [67].
all reasonably practicable alternatives for the achievement of the stated objective. In this respect, as I have noted, the Committee relied on the work done by its senior employee Mr Singh and his team, and it questioned him on this extensively, as evidenced in the transcript of the Committee hearing. I am satisfied the Committee had before it in this way all reasonably practicable alternatives, it acted proportionately, and it was entitled to proceed as it did.
Issue two: consultation — did the Council fail to consult with businesses on two key matters?
[108] It is accepted by all parties that because the Council undertook a consultation exercise on the traffic resolution, it was therefore required under the LGA to comply with the consultation principles set out in s 82 described above.
[109] However, the applicant TQC maintains here the consultation process undertaken by the Council was generally inadequate. It says there was no need for an urgent timeframe and that it had advanced a good reason for an extension to the consultation period, namely the fact the businesses in the area were particularly affected by the traffic resolution and desired to compile a collective submission.89
[110] The crux of the challenge under this head, however, is that the applicant TQC contends the Council failed to consult with businesses on two key matters and these omissions were in breach of the LGA. The two matters in particular are, first, an unstated objective that it is alleged the Council subsequently purported to rely on in making its decision, and secondly, an internal analysis of alternative options conducted by Council officers.
[111] The “unstated objective” the applicant TQC refers to is what it says is the undisclosed aim of the Decision to increase the lateral space on Thorndon Quay. The applicant says because this objective was not stated, the Council failed to give clear information concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented. The applicant says it was therefore unable to make submissions on this unstated issue of lateral space, an issue
89 Affidavit of Mr Robinson at [77]–[83].
which, in reliance on the evidence of its expert economist Mr Harrison, it says has no empirical basis.
[112] As will be evident from the foregoing analysis, I do not accept the issue of lateral space was an unstated objective of the Council. To the extent the Council had an inclination to increase the lateral space on Thorndon Quay, I am satisfied this was in pursuit of their real and overarching objective, which as I have noted was to improve cyclist safety. I do not accept the Council had and subsequently purported to rely on an unstated objective. Any consideration the Council had to the lateral space available was relevant only to the extent it impacted upon its real and stated objective of cyclist safety. This was clearly outlined and described. The applicant TQC and others in my view had ample notification of this and should have been fully aware of it.
[113] The second major respect in which the Council is said to have breached s 82 relates to its alleged failure to make publicly available an analysis of the reasonably practicable options, including the proposed change to parallel parks, that had been identified under s 77(1). The applicant TQC says this failure is significant given the evidence now that Council officers conducted such an internal analysis.
[114] However, I do not accept the Council breached s 82 in any failure on its part to provide this information. I am satisfied in this instance the Council provided to the public reasonable access to all relevant information. The Council elected to undertake consultation on the traffic resolution, it provided information about the options it was considering, and in particular the proposed change to parallel parks. To a large extent, the internal analysis the Council conducted was irrelevant to any consultation, as the analysis was an assistive tool for its own consideration. Indeed, any consultation on the other discarded options included in that internal analysis would arguably have been disingenuous, confusing and actually impeded proper consultation. This was because the Council had already discounted those other alternatives — through the analysis of its officer, Mr Singh, and his team — as not reasonably practicable, and therefore not viable options.
[115] Although the Council was only required to ensure that it would “promote compliance” with the s 82 principles, as an aside I add that it is my view here that in fact all of the consultation principles in s 82 were met in this case.
[116] I am satisfied the Council here did provide reasonable access to the relevant information in a clear form. In particular, I note that on 19 May 2021 representatives from the applicant requested additional data that had been used to compile the Parking Analysis Paper. Mr Kylie Hook, for the Council, offered to provide that information to the applicant and did so on 28 May 2021.90 Though I accept this was not information that needed to be proactively released to the public, I believe this response from the Council to the request from the applicant demonstrates the Council’s interest to ensure it did provide all relevant information to interested parties.
[117] I am also satisfied from all the material before the Court that the Council encouraged the public to present their views and that it provided an adequate period for its consultation.
[118]I refer at this point to Part 7 of the Council’s Plans, Policies & Bylaws
regulations, which part deals with traffic. Clause 12 of those regulations provides:
12. Public notification
12.1 Any resolution proposed under this Part shall be placed on the Council’s website at least 14 days before the Council considers it. Any person may provide comments, in writing, on the proposed resolution and those comments will be considered by the Council before it makes a resolution. Any person who has made written comments may request to be heard by the Council and it is at the Council’s sole discretion whether to allow that request.
[119] Clause 12 represents the Council’s judgment as to how it undertakes consultation in relation to traffic resolutions. As can be seen, the Council’s position is that a two-week period of consultation will typically be sufficient. In the present case however, submitters were given four weeks to present their comments on the proposed resolution. The applicant TQC was given a further two days. While this might not be regarded as a generous extension, nevertheless I am of the view that overall the period of time provided for consultation was sufficient in this case.
90 Affidavit of Mr Kylie Hook, 13 June 2022, at [3.9].
[120] The public also in my view had a reasonable opportunity to present their views here in a manner and format that was appropriate to their preferences. Both written and oral submissions were heard and considered. I am satisfied there is a clear record of the Council’s decision as well as explanatory material relating to that decision. This supporting material took the form of Mr Singh’s report recommending the adoption of the traffic resolution, an analysis of the relevant parking data, an analysis of the submissions received, copies of all those submissions, and accurate minutes of the meeting as well as a transcript.
[121] Finally, there is nothing before me to suggest that the Council received the presented views other than with an open mind. The Council held two public meetings to discuss the proposed changes to Thorndon Quay generally. The Council acknowledges that the two meetings that took place between LGWM officers and the applicant might be considered now as unsatisfactory for both sides. However, there is nothing to suggest this represented a “closed mind” on the part of the Council. The officers present at those meetings were not the decision-makers. The decision-makers were the members of the Committee, who, as noted, were all elected Councillors.
[122] I am satisfied there has been nothing put before the Court to suggest that the Councillors themselves approached the question with predetermination91 or with anything other than an open mind. They listened to submitters, considered their views, and, as evidenced by the transcript of the hearing, questioned and tested Mr Singh in terms of the work he and his team had done in recommending the change to parallel parks. In Friends of Turitea Reserve Society Inc v Palmerston North City Council, Baragwanath J held that “open minded” in a consultation context did not mean “without predisposition”, but rather, “prepared, despite predisposition, honestly to consider whether to change its mind”.92 On one view of matters, this may well have represented the situation here. Though the Council initially might have had a preferred option, namely changing the angled parking to parallel parking, I am satisfied the
91 Pre-determination on the part of the Council was raised before me as an issue on behalf of the applicant TQC, but it does not appear to be part of its pleadings here. Further, the Council and the Committee, as decision-makers, resolved to approve the Decision only by a 10 – 5 majority vote of councillors, which itself might be seen at one level as indicating the extent to which the councillors in their deliberations fully grappled with all the issues here.
92 Friends of Turitea Reserve Society Inc v Palmerston North City Council, above n 58, at [98].
circumstances were such at the time that the Council would have been prepared to reconsider the position had, for instance, there been reasoned and strong overall public opposition to the proposal.
[123] Having considered the position and all the relevant material, I am satisfied the Council undertook adequate consultation on its proposal in this case. In my view it complied with all of the principles of consultation as set out in s 82. I do not accept the applicant’s submission that the Council breached s 82 in failing to consult with businesses on the two key matters raised, namely an “unstated objective” and the internal alternative option analysis, as alleged.
Issue three: discretion under s 79 — did the Council fail properly to exercise its judgment pursuant to s 79 of the LGA?
[124] The applicant says the Council failed properly to exercise its judgment pursuant to s 79 of the LGA, which provision required the Council to make certain judgments. While it appears there is no record of those judgments before the Court, the applicant contends the record of what the Committee knew is clear, and it lacked the information necessary to properly make those judgments.
[125] Section 79, according to the applicant TQC, is not a “de facto ouster clause”, the effect being that it need not comply with its decision-making obligations under the LGA. Instead the applicant argues s 79 imposes a further obligation on the Council to make a judgment about how to achieve compliance with its decision-making obligations. The argument follows that such judgments, once made, will colour the appropriate manner of compliance with those obligations.
[126] Recalling the terms of the legislation, the applicant contended that the Committee, as the Council’s delegated decision-maker in this case, was required under s 79 to make judgments on how to achieve compliance with ss 77 and 78 in a manner that was largely in proportion to the Decision’s significance, in particular on:
(a)the extent to which different options were to be identified and assessed;
(b)the degree to which benefits and costs were to be quantified;
(c)the extent and detail of the information to be considered; and
(d)the extent and nature of any written record to be kept of the manner in which it had complied with ss 77 and 78.
[127] The applicant says the Committee could not make the required judgments under s 79 at its 24 June 2021 meeting, because it was missing information necessary to do so. In particular, the applicant says the Committee did not know:
(a)all the options considered by Mr Singh’s team;
(b)the reasons why Mr Singh’s team had rejected each option;
(c)the extent to which different options had been identified and assessed by Mr Singh’s team;
(d)the degree to which Mr Singh’s team had quantified benefits and costs;
(e)the extent and detail of the information Mr Singh’s team considered; or
(f)the extent and nature of written records Mr Singh’s team had kept.
[128] The applicant says the Committee therefore lacked sufficient information to make the required judgments under s 79 as to whether the extent, degree of quantification and detail of the assessment of options was appropriate to achieve compliance with the decision-making provisions.
[129] The further submission is advanced that, because the Decision was said to be based on empirical evidence about safety and parking utilisation as set out in the Parking Analysis Paper, it would be reasonable to expect some level of quantification of costs and benefits. The applicant goes on to contend that, because the Council produced written documents for consultation, this must suggest it considered a written record to be appropriate, and therefore there is “no good reason” why this should not also be the case with respect to the Council’s assessment of all “reasonably practicable
options”. At a basic level, the applicant says there is no evidence before the Court that the Council made the required judgments.
[130] Mr Whittington for the Council strongly disputes this. He says the Council did record judgments about how it intended to achieve compliance with the decision- making and consultation principles. In this regard he points to the Council’s bylaw, which expressly records that traffic resolutions will be the subject of two weeks’ consultation (which carries with it an implicit judgment that traffic resolutions are not generally considered of high significance, such that they would invoke the special consultative procedure or longer and more in-depth consultation). Mr Whittington does acknowledge that it would have been preferable for there to have been in existence a document identifying the options considered by Mr Singh and his team, with reasons why each was not considered reasonably practicable. However, the Council’s position is that the evidence presented to the Court demonstrates clearly the advice given to the Committee by Mr Singh was sufficient to ensure the Committee was satisfied it had before it all reasonably practicable alternatives.
[164] The Criticism can always be made of a Council in a situation such as the present that it did not send more people out to check and get more information. As Mr Whittington in his submissions suggests, “in a world in which costs of resourcing are irrelevant the Council would have employed an army of people to stand on Thorndon Quay all day, every day, for months, collecting data manually, peer reviewing and cross-checking, and then ‘ground-truthing’ the outcome.” This of course plainly overstates what the applicant is suggesting here. Nevertheless, as I see it, the point is well made. I accept that the steps taken by the author of the Paper here in relying on data gained from the sensors installed for this and other purposes, and consequently the steps taken by the Council in relying on this analysis, were entirely
114 Affidavit of David Smith at [5.8].
115 At [5.12]–[5.19].
116 Bryson v Three Foot Six Ltd, above n 15, at [26].
117 Affidavit of Mr Smith at [5.20]–[5.31].
reasonable and were proportionate to the Decision required in terms of the manner of compliance with ss 77 and 78 under s 79.
[165] I note here too that in particular Waka Kotahi, in its 2020 audit report of the Council, had insisted that the Council “needs to act now to implement an interim safety measure for cyclists.”118 As Waka Kotahi further commented in that report, in light of what was seen as a dangerous situation for cyclists, it was “vital that Council prioritises first on safety and second on convenience”.119 In such circumstances, I am satisfied the Council took adequate steps to inform itself then of the dangers to cyclists as well as the possible downstream effects of any change to the parking arrangement, which I now address.
[166] To the extent that a decision-maker might have made an error of fact by being inadequately informed, the law is clear that the steps taken to be informed must be reasonable in the circumstances.120 This is to be seen within the context of s 79, which means it is a matter for the local authority to determine in its discretion and proportionate to the significance of the decision.
[167] Here, the Council it seems took a number of steps to inform itself of the facts. These included collecting a substantial amount of parking data, considering crash data, taking advice from experienced Council officers, and consulting with affected parties. I accept the Council’s submission that in the circumstances, given the “medium” level of significance of the Decision, this was adequate. While more might have been expected if the Decision had been a “significant” decision, I am satisfied the Council adequately fulfilled its obligations here.
[168] Moreover, due to consultation it undertook, the Council was well aware that business owners believed their businesses would be affected. This information was before the Committee and represented part of the material the Committee can be presumed to have taken into account in its decision-making. I am satisfied the Committee members would have weighed up these views as part of their decision on
118 2020 Audit Report, above n 5, at 19.
119 At 19.
120 Taiaroa, above n 111.
how to vote in terms of the traffic resolution. The Council too subsequently declined to reconsider its position even following a petition from the applicant based on the alleged effects the business owners claimed.
[169] I accept the Council’s submission that whether or not there would be sufficient parking available following the change to parallel parks was not a matter of objective fact. It was, at root, an assumption. The nature of the Council exercise was that it was attempting to predict a future unknowable. What the Council was required to do was to form the best determination it could based on the information available to it at the time.
[170] As I see it, I am satisfied the Committee based that determination on its understanding of current usage, and it was entitled to rely as it did on the information before it as to this. While I accept there appear to have been certain issues with the methodology adopted for the analysis here, I am satisfied none of these amount to a finding that, in terms of the relevant tests, there was no evidence to support the determination, the evidence was inconsistent with and contradictory of the determination, or, in particular, that the true and only reasonable conclusion contradicted the determination.121
[171] Accordingly, I do not consider the Council proceeded on an incorrect assumption or material error of fact in assuming there would be no adverse social or economic impact from changing the car parks.
Second alleged mistake of fact — comparative safety for cyclists of angled and parallel parks
[172] The second mistake of fact alleged by the applicant is that the Council materially (and wrongly) relied on the assumption that parallel parks were comparatively safer for cyclists travelling along Thorndon Quay than the existing angled parks. As the Council described the situation in the Consultation Paper, under the heading “Why we are proposing the change”:
·…
121 Bryson v Three Foot Six Ltd, above n 15, at [26].
·With the increase in people cycling along Thorndon Quay, the number of injuries incidents relating to cyclists have increased over the last five years. A major contributor to incidents on Thorndon Quay relates to conflicts between cyclists and motorists using the angled car parks
…
·Changing the parking layout from angled to parallel will improve safety for cyclists along this section of Thorndon Quay.
[173] This assumption was clearly a material factor underpinning the Decision. It was relied on by the Committee in making its Decision. Indeed, the primary objective of the Council’s proposal to change the parking arrangement on Thorndon Quay was to improve the safety of cyclists travelling along the corridor.
[174] However, the applicant says here the assumption that parallel parking is safer for cyclists than angled parking is demonstrably incorrect. The applicant argues the most directly relevant empirical evidence available to the Committee at the time of its Decision was inconclusive on this matter. On this, the applicant adduces evidence from its expert witness, Mr Ian Harrison, an economist. Mr Harrison has provided a report (the “Tailrisk” report) detailing statistical evidence of the relative safety of angled and parallel parking, as well as an affidavit-in-reply responding to the evidence of the Council’s expert witness, Mr Paul Durdin. The applicant has also filed two affidavits from Mr Wanty, who expressly records that he is a road safety expert. Mr Wanty in his affidavits, however, is silent as to the comparative safety to cyclists of angled and parallel parks.
[175] The Council for its part points to an apparent dispute between the parties in relation to how road safety is assessed. According to the respondent, each of the Council, Waka Kotahi, and the Council’s independent expert, Mr Durdin, identify a clear safety flaw in the previous road configuration. The respondent suggests the applicant “believes everyone is wrong based on the opinion of an economist” and states the applicant’s road safety expert is “pin-drop silent” on the safety issue.
[176] In particular, the respondent objects to the evidence of Mr Harrison. First, I take account that Mr Whittington for the Council argues that, for certain procedural reasons relating to the manner in which Mr Harrison’s evidence was admitted (the applicant having neglected to file an affidavit-in-chief from Mr Harrison as it should have done), the Council did not have an opportunity to brief an economist to determine
whether Mr Harrison’s opinions are correct. I will not disregard Mr Harrison’s evidence, however, as Mr Whittington asks me to, but I do take account of this particular evidence bearing this in mind.
[177] The more substantive and second point the respondent makes, in my estimation, is that in conjecturing about matters of road safety, Mr Harrison strays well outside his area of expertise. In the “Tailrisk” report, Mr Harrison makes a number of conclusions as to the comparative safety of angled and parallel parks in reliance on available statistical data. In his subsequent affidavit-in-reply, Mr Harrison expands on the views expressed in the Tailrisk report by way of critique of Mr Durdin’s conclusions with regard to road safety.
[178] I make no criticism of Mr Harrison’s evidence as the applicant’s economic expert as it relates to economic perspectives. However, it must be acknowledged he is not a traffic or road safety expert. Accordingly, on questions of road safety, I put greater stead in the evidence of the witnesses with experience and expertise in road safety, namely Mr Wanty for the applicant and Mr Durdin for the respondent.
[179] At this point I recall that the applicant’s expert on road safety, Mr Wanty, despite ample opportunity to do so, did not express any view on the issue whether angled parks or parallel parks were safer for cyclists. The Council highlights what it describes as an “extraordinary situation”, namely that even though the applicant’s case is based on a challenge to the view that Thorndon Quay was unsafe for cyclists, its own road safety expert does not give any such opinion. The Council invites me to draw an adverse inference from this. It suggests that any road safety evidence Mr Wanty would have given would not have supported the TQC’s case.122
[180] I do not consider such an adverse inference is either necessary or warranted here. However, I accept that, as Mr Whittington for the Council somewhat tellingly points out in his submissions, “the [a]pplicant briefed reply evidence purporting to be
122 As the respondent points out, this is known as the rule in Jones v Dunkel, after Jones v Dunkel (1959) 101 CLR 298, which was subsequently adopted in New Zealand in Perry Corp v Ithaca Custodians Ltd [2004] 1 NZLR 731 (CA) at [144]–[155] as a principle of the law of evidence authorising the form of reasoning that evidence a party could be expected to have called would not have helped that party’s case (at [153]).
road safety evidence from an economist, but failed to brief road safety evidence from its existing road safety expert.” On the question of safety, therefore, all evidence before the Court (apart from that of the applicant’s economic expert) suggests the previous layout of Thorndon Quay with its combination of angled parking and provision for cycling was unsafe, and that parallel park arrangements are generally safer for cyclists than angled parks.
[181] Turning to that evidence, in particular I note in this respect the 2020 audit report of Waka Kotahi I refer to above at [14]. This report from Waka Kotahi came from it as a central government agency tasked with ensuring road safety and undertaking an audit of the Wellington road network. I am satisfied its advice constitutes a reliable opinion. In an earlier 2015 audit report, Waka Kotahi had identified only three safety issues (a paucity which I understand to be significant), one of which was the present issue, the safety of cyclists on Thorndon Quay.123 In the 2020 audit report, Waka Kotahi was then even more directive. It stated:124
At the last audit in 2015, we commented about the crashes on Thorndon [Quay] involving cyclists. On this audit, we observed that no recent improvements had been made to improve cycle safety on Thorndon [Quay]. Counsel commented that improvements are being looked at to improve Thorndon [Quay], but these will be implemented as part of the “Let’s Get Wellington Moving” programme. This work programme is in its infancy with physical work many years away. This is too long. Council needs to act now to implement an interim safety measure for cyclists. The major conflict on Thorndon [Quay] is the conflict between cyclists and cars exiting the perpendicular car parks. A simple solution is to revise the parking orientation to all parallel car parks to mitigate the conflict. It is vital that Council prioritises first on safety and second on convenience in this situation.
[182] The Committee clearly relied also on comments made to similar effect in the Parking Analysis Paper referred to above at [18]. As the Paper stated:125
The crash history indicates that cyclists are at particular risk at Thorndon Quay. Cyclists were involved in 25 percent of crashes and represent more than half of serious injury crashes in the area …
The data indicate that the current parking configuration is likely the main contributor to the large number of cycle crashes in the area. Of the 25 reported
123 Waka Kotahi NZ Transport Agency Investment Audit Report: Monitoring Investment Performance
(December 2015).
124 2020 Audit Report, above n 5, at 19 (emphasis added). Waka Kotahi referred in its report to “Thorndon Road” but this was clearly meant to refer to Thorndon Quay.
125 Parking Analysis Paper, above n 9, at 4–5 (emphasis added).
crashes involving cyclists in the area, 20 were related to parking. Of the four serious injuries involving cyclists, three related to parking. There are two main types of parking crashes: vehicles manoeuvring into or out of parking spaces and colliding with cyclists, and drivers opening car doors and hitting cyclists.
Figure 5 shows that parking, especially angle parking, is a proportionally greater factor in cycle crashes along Thorndon Quay than it is for vehicle vs. vehicle crashes or crashes involving motorcycles and mopeds.
[183] Again I consider this is evidence which reasonably supports the ultimate determination of the Committee in relation to the comparative safety of parallel and angled parking. The applicant does raise an arguably relevant point that in order to get an accurate understanding of the risk of any particular cyclist experiencing an incident, it is necessary to account for the relative proportion of angled to parallel parks. It contends the Council’s analysis was therefore wrong. In my view, however, the difference this makes to the overall analysis is negligible and the Committee was cognisant of this analytical limitation.
[184] I note, moreover, that during the Committee’s meeting on 24 June 2021 at which the Decision was made, one Councillor asked Mr Singh about “the quality of our evidence about whether parallel parking is really safer than angle parking”. Mr Singh referred to the Austroads tool and a “large amount of data” collected internationally which had “basically determined that parallel parking is more safe than angle parking”. Given that the Council’s overarching objective in this Decision was increasing safety for cyclists, the Committee’s concerns were clearly satisfied. For my part I am satisfied that was an available position for the Committee to take.
[185] It is not the place of the Court here to make an assessment for itself as to whether parallel parking is safer for cyclists than angled. The question for the Court on review is whether the Council was entitled on the basis of the evidence before it to make this assessment and ultimate conclusion.
[186] I do not think this assumption was “demonstrably incorrect”, as the applicant alleges. Rather, I am satisfied that the evidence the Committee had before it reasonably supported this conclusion.
[187] The threshold for a successful finding that the decision-maker proceeded on an error of fact is high. As noted, there will be an error of law on a material mistake of fact where “there is no evidence to support the determination”; “the evidence is inconsistent with and contradictory of the determination”; or “the true and only reasonable conclusion contradicts the determination”.126 I am of the view none of these wordings can realistically be said to accurately describe the Council’s conclusion here that parallel parks were comparatively safer for cyclists than angled parks. I am satisfied that on the basis of the evidence described, there was evidence supporting the Council’s determination that parallel parks were safer than angled parking, and indeed no evidence, apart from that of the Council’s economic expert, to suggest the reverse is true.
[188] I accept that the evidence of Mr Durdin and Mr Smith in support of the position that parallel parks are safer for cyclists than angled parks has been adduced after the Committee made the Decision. The Council arguably might have done further research into the safety aspects of the proposed change, in terms of assessing the advantages and disadvantages of the proposal under s 77. Nevertheless, I recognise here that any such further research was entirely subject to the Council’s discretion as to how it would comply with ss 77 and 78 under s 79, and that in a decision of medium significance such as this, what the Council did in terms of informing itself as to the comparative safety of different parking arrangements was sufficient.
[189] I thus dismiss the applicant’s argument that the Council, through its delegate the Committee, proceeded on a material mistake of fact in this regard.
[190] For the sake of completeness, I note my view that the Committee took into account all relevant safety risks here. Any suggestion of safety risks due to an alleged increase in “U-turns” on the roadway or difficulties for businesses unloading stock on Thorndon Quay due to the changes is tangential, anecdotal and not information the Committee had (nor necessarily could or should have had) before it at the time.
126 Bryson v Three Foot Six Ltd, above n 15, at [26].
Issue five: relief
[191] The applicant seeks relief by way of declarations that the Decision was unlawful and invalid, an order quashing the Decision and an order requiring the Council to return all car parks along Thorndon Quay to their former configuration.
[192] The Council for its part accepts that in the event the Court finds a material error has been made, a declaration to that effect would be appropriate. However, the Council argues the other forms of relief sought would be futile because of other changes proposed by LGWM. In particular, the Council says that by the time the Court came to consider the application, the Council and the LGWM would have determined the future layout of Thorndon Quay. The applicant submitted this argument is wrong as it seeks to pre-empt decisions that the Council has yet to make.
[193] At the hearing before me, counsel advised that since this proceeding commenced, this has now occurred. As I understand the position, LGWM has now determined the concept road design for Thorndon Quay/Hutt Road and has confirmed funding for it. Construction is apparently expected to commence as early as March 2023 and detailed design of the concept is now underway. Importantly for present purposes, the new road layout concept does not include any angled parking, but does include on-street parallel parking.
[194] In this decision, having found the Council did not err in any way, I am not required to deal with the issue of relief. While the Council’s process could arguably have been better in certain respects as I have outlined above, I am satisfied none of these failures amounts to an error of law.
[195] For completeness, however, I need to record that had I decided otherwise here, in any case I would have been hesitant to grant the full relief the applicant seeks.
[196] In the ordinary course of events, where a decision-maker has erred in the exercise of public power, the claimant is entitled to relief.127 It is only in “exceptional”
127 Ririnui v Landcorp Farming Ltd, above n 109, at [112] per Elias CJ and Arnold J; and Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [61].
circumstances that the Court will decline relief and there must be “extremely strong reasons” to do so.128
[197] I am of the view that had I found a material error of law on the part of the Council, a declaration to that effect by itself would have been appropriate relief in the present case. I would take this approach for a number of reasons.
[198] First, the role of LGWM in the future layout of Thorndon Quay cannot be ignored. At the outset, whatever decision the Council made was always going to be interim pending the implementation of the Thorndon Quay/Hutt Road project being undertaken by LGWM at the same time. It was as a response to the pressing issue of cyclist safety that the Council proceeded with its own traffic resolution process, but the final form of Thorndon Quay was always going to be that as determined through the LGWM process. As I have been advised, the current and foreseeable position is that the plan for Thorndon Quay which has been fully approved and funded by all three LGWM partners, and for which construction is scheduled to commence as early as March 2023, provides for parallel parking spaces only. In these circumstances an order quashing the Decision and requiring the Council to return all car parks to their former configuration in my view would be largely futile.
[199] Secondly, the safety of cyclists is at play. As I have outlined above, there has been significant evidence at least to suggest that the former parking configuration was unsafe for cyclists and the current configuration is a safer one. An obvious question arises over whether, even if the Council had undertaken an improper process here, the safety of cyclists should now be put at increased risk as a result.
[200] Finally, though I put less weight in this as a factor, I note that any order quashing the Council’s Decision would cause administrative inconvenience and waste, including possible further consultation and data evaluation. Particularly in circumstances where LGWM has now decided on a final concept for Thorndon Quay, this would be unnecessary and duplicative.
128 Air Nelson Ltd v Minister of Transport, above n 127, at [60], citing Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL) at 616 per Lord Hoffmann.
[201] Had the applicant been successful in these proceedings, a remedy would have been appropriate to vindicate the applicant for the Council’s breach of the law. Of that there is no doubt.129 However, I am satisfied a declaration to that effect — in combination with costs as the successful party — would have been sufficient vindication to the successful applicant in all the circumstances here.
Result
[202] It will be apparent for all the reasons I have outlined above that none of the grounds for review alleged by the applicant has been made out.
[203]The application is dismissed.
Costs
[204] I heard no argument on costs. I see no reason why the Council, as the successful party, should not be entitled to an order for costs and disbursements in the usual manner. However, I urge the parties and counsel to liaise amongst themselves with a view to determining costs, failing which I will receive submissions (sequentially) from the parties (to be no more than five pages in length) and I will determine the issue of costs on the papers.
Gendall J
Solicitors:
Robert Kirkness Barrister, Gibson Sheat and James Tocher Barrister for the Applicant Nick Whittington Barrister for the Respondent
129 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [1].
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