Wellington International Airport Limited v Waka Kotahi New Zealand Transport Agency
[2022] NZHC 954
•6 May 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-000162
[2022] NZHC 954
In the matter of An application for judicial review BETWEEN
WELLINGTON INTERNATIONAL AIRPORT LIMITED
Applicant
AND
WAKA KOTAHI NEW ZEALAND TRANSPORT AGENCY
First Respondent
AND
WELLINGTON CITY COUNCIL
Second Respondent
AND
GREATER WELLINGTON REGIONAL COUNCIL
Third Respondent
Hearing: 27-28 April 2022 Appearances:
J L W Wass and M R G van Alphen Fyfe for Applicant A J Wicks and J P Papps for First Respondent
E L Higbee for Second Respondent (No appearance by leave) D M Kessell-Haak for Third Respondent (No appearance by leave)
Judgment:
6 May 2022
JUDGMENT OF GRICE J
(Interim Injunction)
WELLINGTON INTERNATIONAL AIRPORT LTD v WAKA KOTAHI [2022] NZHC 954 [6 May 2022]
Contents
Introduction[1]
Summary of conclusion[15]
Interim injunction principles[21]
The judicial review claims[28]
First cause of action: Consultation[29]
Second cause of action: Relevant considerations[33]
Third cause of action: Unreasonableness[38]
Fourth cause of action: Unlawful fetter of discretion[39]
Relief[40]
Principles of judicial review [42]
Consultation[44]
Disclosure[52]
Unreasonableness[55]
Mandatory considerations[56]
Fettering discretion[58]
Decision-making framework [61]
Statutory framework[72]
The process[81]
First cause of action — failure to consult[147]
Wellington Airport’s submission[160]
Consultation summary[166]
Context[169]
Errors in the modelling[180]
Second cause of action — failure to consider relevant considerations[188] Failure to take into account the Traffic Control Devices Rule[191] Third cause of action — unreasonableness[199]
Fourth cause of action — fettering/constrained process [200] Provisional assessment on the merits of the substantive application [210] Interim relief [211]
Necessity to preserve the position of the applicant[213]
Discretion on the circumstances of the case[227]Conclusion[233]
Costs[235]
Introduction
[1] Let’s Get Wellington Moving (LGWM) is charged with oversight of a strategy and its component projects and activities to solve Wellington’s land transport problems. It brings together in a partnership the three main agencies governing land transport in the city and the region. The main agency charged with public and regional road transport strategy is the Greater Wellington Regional Council. The Wellington City Council is responsible for roads, except state highways, footpaths and cycleways in the city. The New Zealand Transport Authority, known as Waka Kotahi,1 is responsible for the National Road Transport strategy as well as state highways and managing the central government funded National Road Transport Fund. 2
[2] LGWM is funded by the three agencies in various proportions to an overall sum in the vicinity of $8 billion. It has been under local and national, political pressure to deliver on projects. One of those projects includes the lowering of the speed limits and construction of a pedestrian and cycle crossing along Cobham Drive, a four-lane state highway which is the primary route from the city through the Mt Victoria tunnel to the airport and the eastern suburbs. The speed limit has already been reduced and that is outside the scope of this proceeding although it has some indirect bearing on the issues at hand.
[3] This application seeks an interim injunction to suspend the construction of the at-grade (level) signalised crossing on Cobham Drive by Waka Kotahi. It will have separate offset crossings for each side of the road, each separately controlled. The proposed crossing will cost about $2.8 million to construct and will be the only pedestrian/bike crossing for 1.8 kilometres of that four-lane highway.
[4] Wellington Airport, the applicant, opposes the construction of an at-level crossing as opposed to a grade-separated crossing (such as an overpass) at this stage. It has filed a substantive application for judicial review of the decisions related to the construction of the crossing upon which the present interim application is based. While it has no formal representative role it says it represents the interests of
1 Also known as NZTA.
2 I refer to the respondents as a group as LGWM.
businesses based at the airport, including a hotel, as well as passengers who use the airport and other residents and businesses who use Cobham Drive and surrounding roads, including taxi drivers.
[5] Wellington Airport says that it had no option but to apply for an interim injunction to immediately stop the construction. It says it cannot wait until a full hearing of its judicial review application, which is scheduled for 20 and 21 July 2022 as once construction starts, traffic to and from the airport will be delayed due to the construction works and there will be an inevitability about the crossing. Wellington Airport says the damage will have begun and it is not in the public interest to use money earmarked for transport projects on construction if the project is subsequently stopped. It also says the construction of the crossing will entrench that solution, despite LGWM’s resolution that the effects of the crossing will be monitored and work will continue on another medium- or long-term solution.
[6] Wellington Airport acknowledges that judicial review does not target the merits of a decision but rather the process by which the decision is reached and any flaws in the decision-making or unreasonableness in the public law sense by the decision-maker.3 While the Court in a judicial review application is not concerned with the intrinsic merits of a decision,4 they may be relevant if the decision was one that no reasonable decision-maker could have made in the circumstances.
[7] Waka Kotahi had the statutory responsibility to approve the construction of the crossing and to fund it.5 It did so and was supported in that by an earlier decision of the LGWM to endorse the business case for the project.
[8] A public announcement that the crossing would be built was made in March 2022. That announcement had followed a process which included a public consultation in relation to the crossing proposal in June/July 2021. The LGWM Board approved the business case on 27 January 2022. Waka Kotahi approved the funding
3 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55; [2008] 1 NZLR 13 at [25] per Blanchard J.
4 Isaac v Minister of Consumer Affairs [1992] NZLR 606 (HC) at 625 per Tipping J.
5 This is technically referred to as an “at-grade” signalised crossing. This means it is at the same level as the road rather than an overpass or underpass and it is controlled by traffic lights.
for the crossing on 10 February 2022. It also led the project, including the consultation process on the project, under the LGWM banner. There were two main issues which were highlighted in the business case. The first was that of safety for pedestrians and cyclists given the lack of a pedestrian crossing in that portion of the road. There has been one fatality in the vicinity caused by a pedestrian attempting to cross the highway as well as a number of serious accidents involving pedestrians and cyclists. The second issue is the extra delay which would be caused to motorists using Cobham Drive.
[9] Wellington Airport is interested in all proposals affecting transport in the region, and in particular the routes to and from the airport. It has been engaged with LGWM for some years in relation to the Wellington transport strategy and various projects. The Cobham Drive crossing proposal is of great concern to it. It made extensive submissions during the consultation phase on the crossing in June/July 2021. It has also written to the Chairman of the Board of Waka Kotahi directly about its concerns. It considers the decision to construct a level signalised crossing on Cobham Drive was made without proper consideration of the issues, particularly as they relate to the delays likely to be caused to vehicles travelling to and from the airport on Cobham Drive.
[10] Wellington Airport says that LGWM and Waka Kotahi failed to properly consult in the public law sense. In particular, it says LGWM and Waka Kotahi did not supply it with documents and information it asked for which would have enabled it to make proper submissions, the submissions it made were not properly considered, and there were material errors in the business case for the crossing presented to the LGWM Board, upon which it relied to make the decision approving the crossing project. It says the decision to construct the crossing is unreasonable in the legal sense.
[11] Wellington Airport also says that LGWM and Waka Kotahi had a closed mind, in that they had already determined that a signalised crossing on Cobham Drive would be constructed prior to consultation. Therefore, they did not properly consider the submissions, which were overwhelmingly against a level signalised crossing but favoured an overpass or underpass which when constructed would not interrupt traffic flow.
[12] Waka Kotahi says there have been no errors which would require it or LGWM to reconsider the decisions concerning the crossing. It was due to start construction on 2 May 2022 but agreed to delay commencement of the construction pending this decision on the interim injunction application.
[13] Despite the truncated preparation time for this hearing, the parties have ensured that the Court was well informed by the provision of affidavits of the relevant parties, including an economic expert for Wellington Airport. He critiques the arithmetic, assumptions, and modelling tool used to prepare the business case relied upon in the decision to construct the crossing. Waka Kotahi relies on the evidence of its expert transport engineering consultant who assisted in the preparation of the business case. His evidence rebuts most of the criticisms and says that the adoption of the assumptions and the selection of the tools were matters properly within the judgement of Waka Kotahi.
[14] While bearing in mind this is only an interim hearing, the material put before the Court was substantial, and counsel for each party advanced careful and comprehensive submissions which ran for more than a day of hearing time.
Summary of conclusion
[15] The applicant must establish that an interim injunction is necessary to preserve its position as a threshold step. If it succeeds there remains to the court a discretion as to whether to grant the application.
[16] The applicant has failed in my view to establish that the interim order is necessary to preserve its position pending the decision on the application for judicial review. Even accepting that it represents interests wider than its own, the detrimental effects it seeks to avoid relate to the delays likely to be caused during the construction period from now until November this year. Wellington Airport points to various direct and indirect effects which may flow from the delays, such as reputational damage for the airport and increased costs for businesses. However, these are not able to be quantified with any degree of precision, nor was there any attempt to do so. The delays will be caused by roadworks and the traffic effects will be managed by Waka Kotahi
in that period. While an attempt has been made to assess these delays in monetary terms that is not useful in the present assessment nor can it be monetised with any precision. Delay is an intangible factor, but I am not satisfied that a delay caused by construction for motorists is sufficient to establish a position to be preserved.
[17] In addition, even if the threshold test were established, I would exercise my discretion to dismiss the application. One factor in favour of the application are that the construction (and the crossing if it is built before the final decision) will cause delays for motorists. However, I do not put much weight on the argument that the provision of a crossing may lead to delays on medium term and longer-term solutions. LGWM has directed that the effects of the crossing be monitored and urged work to continue on alternative medium- and long-term solutions.
[18] The factors in favour of dismissing the application are that the safety issues will be mitigated in the near future, the project is in line with the principles governing the LGWM long and medium-term strategies as well as the project objectives of improving safety for people walking and cycling and improving connections to existing and planned walking, cycling and public transport infrastructure.
[19] Recognising the full judicial review application is yet to be heard, the merits of the judicial review application at this stage are not unduly strong. The construction is due to begin, and the resources have been allocated it is inappropriate to delay this project further in the circumstances.
[20]Accordingly, I dismiss the application.
Interim injunction principles
[21] Section 15 of the Judicial Review Procedure Act 2016 allows the Court to make interim orders, if in the Court’s opinion it is necessary to do so to preserve the applicant’s position.
[22]Section 15, as relevant, reads:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2) The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
…
(4)An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[23] First, the statutory threshold of the necessity to preserve the position of the applicant must be established. The section then allows a wide discretion and does not seek to define factors relevant to the discretion. In this second step, the Court must consider all of the circumstances of the case. These include the strength or weakness of the claim, the statutory framework, the public interest, and the private and public repercussions of granting relief.6
[24] In a benchmark decision of the Court of Appeal in Carlton & United Breweries v Minister of Customs,7 Cooke J said this valuable power should not be restricted by any formulations such as those to be found in relation to other injunctions.8 He said that there was no general rule requiring a prima facie case. In general, the Court must be satisfied that the orders sought are necessary to preserve the position of the applicant, “which must mean reasonably necessary”.9
6 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [JR15.02].
7 Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA).
8 The leading case setting out those principles is American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL).
9 Carlton & United Breweries v Minister of Customs, above n 7, at 430.
[25] Cases since Carlton & United Breweries v Minister of Customs have confirmed that the approach to the threshold test will differ depending on the area of law involved.10 For instance, in immigration cases, an applicant for relief would not be required to demonstrate a strong possibility of success but merely a real contest between the parties with a reasonable chance that the applicant may succeed. This may be contrasted with the endorsement by the Supreme Court in Easton v Wellington City Council.11 In that case, the Supreme Court refused leave to appeal from the decision declining interim relief in which the lower courts had found the order was unnecessary to preserve the applicant’s position, finding that the substantive case was weak. Also relevant may be the expected duration of the interim orders, the relevant decision-making framework approach and the overall interests of justice.12
[26] Other points referred to in the cases which may be relevant to the exercise of the discretion include:
(a)If there is no arguable or justiciable issue raised, there is no position to preserve.13
(b)There must be a “necessity”, as contrasted with a “simple desire to preserve a position if possible”.14
(c)A gloss on the word “necessary” or an attempt to define it is not appropriate.15
(d)If the position to preserve relates to financial implications of a decision on an applicant, the Court requires evidence of a real and serious risk of the implications alleged. Potential delay or a minor financial ramification such as an additional administrative burden in payment
10 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC).
11 Easton v Wellington City Council [2010] NZSC 10, (2010) 20 PRNZ 360.
12 Logan v Minister for Land Information [2021] NZHC 1050 at [27].
13 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55, (HC), upheld on appeal in Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission CA87/97, 12 May 1997.
14 Bishop v Central Regional Health Authority HC Te Papaioea | Palmerston North M47/97, 11 July 1997.
15 Carlton & United Breweries Ltd v Minister of Customs, above n 7, at 443 per Somers J.
arrangements, do not justify the grant of interim relief. Mere assertions without evidence supporting the proposition that there would be financial detriment are insufficient.16
(e)The strength of the applicant’s substantive case is usually, but not always, tested. The degree of strength that an applicant is required to demonstrate in relation to its case at the interim order level depends on the circumstances of the case.
[27] In Criminal Bar Association of New Zealand Inc v Attorney-General, the interim relief was sought in relation to a decision by the Secretary for Justice to introduce changes to the Criminal Legal Aid Scheme which would result in the lowering of fixed fees paid to criminal legal aid providers.17 Some providers said that their practices were marginal. The Court rejected that claim and said that it would be necessary for the plaintiff to “demonstrate a real and serious risk” that some practitioners would be unable to carry on practice if the readjustment took place.18 There was no evidence which supported the proposition that the “financial position of any practitioner” was so “dire as to justify interim relief on that account”.19
The judicial review claims
[28] The applicant has filed a draft statement of claim which it has indicated it intends to amend following this hearing. The grounds for the claim before me for interim relief were argued on the basis of the draft statement of claim as filed.
First cause of action: Consultation
[29] The first cause of action alleges a failure to consult. The applicant says the duty to consult on the Cobham Drive crossing proposal includes an obligation to:
16 Criminal Bar Association of New Zealand Inc v Attorney-General [2012] NZHC 400 at [29] and [30].
17 At [30].
18 At [30].
19 At [30].
(a)provide submitters with sufficient information and opportunity to enable full, intelligent and useful responses;
(b)to consider those responses; and
(c)to make a decision with an open mind prepared to change its position in response to those proposals.
[30] The applicant says the respondents failed to consult in accordance with their obligations and did not provide the applicant with sufficient information to enable full responses addressing the matters in contention. The material sought and the consequences of non-disclosure is pleaded as follows:
(a)The SSBCL [Single Stage Business Case (Lite)] contained the results of the respondents’ traffic modelling and was relevant to the Cobham Drive crossing decision.
(b)The applicant requested the respondents provide it with data and traffic modelling.
(c)The respondents provided a printout of the Austroads tool but failed to provide the applicant with any version of the SSBCL or the SIDRA modelling, whether before or after the formal consultation period.
(d)The Case for Change was not an adequate substitute for that disclosure.
(e)That failure:
(i)impinged on the applicant’s ability to make intelligent and useful responses in respect of the Cobham Drive crossing;
(ii)breached the duty to provide the applicant with reasonable access to relevant information in an appropriate manner and format;
(iii)denied the applicant and other submitters a full opportunity to identify comment on the SIDRA data, assumptions and reasoning underlying the proposed decision; and
(iv)contributed to the respondents using traffic modelling data containing logical and arithmetical errors to dismiss consultation concerns that traffic delays were insufficiently assessed.
[31] A further claim is that the respondents “failed to fairly, accurately, and adequately summarise consultation submissions for decision makers”. This refers to
a failure to include in the consultation summary presented to the decision-makers a number of the applicant’s specific concerns and the failure to include those concerns in both the SSBCL and in the funding request. Those failures meant the LGWM decision was made in the absence of a “fair, accurate and adequate summary of the consultation submissions”.
[32] The applicant says that the respondents did not “fairly and openly consider the consultation responses with a willingness to change their mind on the proposals”. The applicant says the respondents were not presented with a fair and complete analysis of the submissions, nor an analysis that the applicant would have been able to provide if sufficient material had been disclosed to it.
Second cause of action: Relevant considerations
[33] The second cause of action is a failure to consider relevant considerations. The applicant says it provided written submissions to LGWM on 28 July 2021 and pleads that it submitted as follows:
(a)LGWM should choose the best solution, not a suboptimal alternative simply because it is cheaper or quicker;
(b)an overpass would have better safety outcomes and is overwhelmingly desired by the community;
(c)LGWM had not properly considered, costed, or genuinely sought submissions on, an overpass option;
(d)LGWM had inflated the safety and time benefits to pedestrians, including by not adequately identifying the extent of demand through pedestrian usage data, the number of attempts at illegal crossings, or surveys of desire to cross to the ASB indoor sports centre;
(e)LGWM had not assessed the issue of an at-grade crossing causing down-stream issues, such as tail-backs to the Troy Street roundabout and along Calabar Road;
(f)LGWM had not properly costed the impact on motorists, using incorrect figures for average delay and inappropriate values of time for cars travelling along Cobham Drive, which has a heavy proportion of airport and business travel;
(g)a crossing was the wrong way to achieve a short-term safety outcome, and LGWM should consider alternative options such as signage, planting and other barriers to deter informal crossing until a better solution—integrated with major LGWM projects like Mass Rapid
Transport and Mt Victoria tunnel improvements—was implemented; and
(h)the applicant was unable to support proposals on the airport access route that would significantly worsen congestion and delays that are already at intolerable levels.
[34] The applicant said the LGWM had recorded the key themes of submissions made in its consultation summary document of 25 August 2021. That included a preference for an overbridge or underpass rather than an at-grade signalised crossing; concern that the crossing would add to existing congestion; concern that the crossing and lower speed limits would cause tail-backs through roundabouts; the crossing would create safety concerns for users and drivers; and disagreement that a crossing was required. However, the applicant says the consultation summary did not:
(a)acknowledge that the applicant was opposed to the crossing; or
(b)identify the specific concerns raised by the applicant as set out above; or
(c)analyse those specific concerns.
[35] The applicant says its concerns were material to a decision to proceed with the crossing because they affected the safety of the crossing, the economic case for the crossing, and the relationship with a Mass Rapid Transport (MRT)20 solution, which was part of a larger plan intended to ease the transport difficulties between the airport and the city.
[36] Wellington Airport says that the respondents were not presented with a fair and proper summary of the consultation submissions and therefore LGWM could not conduct an analysis of the matters raised nor consider whether they affected the rationale for the proposed crossing. It was not an adequate response that any traffic delays could be addressed after the crossing was built, which was the response given in the business case presented to LGWM. Wellington Airport also says the respondents did not analyse whether the proposed crossing solution would address the
20 Public transport, such as light rail or buses, as opposed to private transport.
safety concerns identified and prevent the type of crash that caused a death on Cobham Drive in 2016.
[37] The applicant also says that the respondents failed to have regard to the Land Transport Rule: Traffic Control Devices 2004 (the TCD Rule) which governs the installation and operation of traffic controls such as traffic lights. It says that the TCD Rule is a mandatory relevant consideration for approving the installation and operation of traffic control devices and was not considered as part of the decision to proceed with an at-grade crossing.
Third cause of action: Unreasonableness
[38] The third cause of action is unreasonableness. The applicant says that there were mistakes and “patent logical errors” in the SSBCL which led to an incorrect benefit to cost ratio (BCR) in the document. The correction of those errors leads to a BCR of less than one, compared to a BCR of 1.2 in the SSBCL. Therefore, the decisions by the respondents made in reliance on the SSBCL were tainted by those errors, making the decisions invalid and unlawful.
Fourth cause of action: Unlawful fetter of discretion
[39] The fourth and final cause of action is a failure to identify and assess alternative options and the unlawful fetter of discretion by the respondents. The applicant says the respondents adopted a constrained process that fettered their discretion as follows:
(a)The respondents have acknowledged that they were under pressure to be seen to achieve visible progress on “early delivery” projects.
(b)The respondents have acknowledged that they were under pressure to deliver a solution for Cobham Drive as soon as possible.
(c)The respondents made commitments to the Minister of Transport to start construction on a Cobham Drive solution in 2021.
(d)The respondents consulted on only one option for the Cobham Drive crossing.
(e)The first respondent approved pre-implementation expenditure on an at-grade crossing before the SSBCL had been prepared and before consultation had been conducted.
(f)The respondents chose to analyse the proposal using a Single Stage Business Case Lite model which was not suitable for the nature of the project and improperly constrained the analysis.
(g)The respondents considered that an at-grade crossing was the only one which would deliver safety benefits within the next three years.
(h)The respondents’ process foreclosed enquiry into other options that would deliver safety solutions quickly, such as barriers, while they investigated alternative long-term options.
(i)The respondents’ decision to choose a solution that could be implemented quickly foreclosed the consideration of other viable alternatives, including a crossing that would be consistent with a long-term MRT solution.
(j)The combined effect of the decisions and considerations pleaded above was to preclude the respondents’ ability to make any decision other than to proceed with an at-grade crossing on Cobham Drive.
Relief
[40] The relief sought in the full hearing is a declaration that the respondents acted unlawfully in failing to adequately consult, an order quashing the respondents’ decision to approve the crossing and seek funding, and an order quashing Waka Kotahi’s decision to approve funding.
[41]I now turn to consider the principles of judicial review.
Principles of judicial review
[42] In New Zealand the courts have approached judicial review bearing in mind that it is a supervisory jurisdiction to ensure that powers are exercised in accordance with the law. In Coromandel Watchdog of Hauraki (Inc) v Minister of Finance, Simon France J noted that judicial review was intended as 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”.21
[43] In this case, in general terms the errors that are alleged relate to failure to consult properly and basing the decision on material errors and having made up its
21 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13], citing BNZ Investments Ltd v Commissioner of Inland Revenue HC Wellington, CIV-2006-485-697, 7 December 2006 at [16].
mind prior to consultation to construct the crossing, either because the decision-maker had a closed mind or it was improperly influenced by political imperatives.
Consultation
[44] In relation to consultation, both parties pointed to the principles set out in Wellington International Airport Ltd v Air New Zealand.22 That case established that consultation did not require agreement, nor did it necessarily involve negotiation toward an agreement, although that might occur. 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”.23
[45] The obligation of the decision-maker is to consult properly and with an open mind before making any final decision.24 A proper opportunity must be given to the person consulted to put any matters forward that they wished to,25 and the decision-maker must take due notice of what is said.26 The proposal must not have been finally decided upon prior to consulting. Rather, the decision-maker must listen to what others have to say, considering their responses, and only then saying what will be done.27
[46] Waka Kotahi also relied on the comments on consultation made by French J in Aorangi School Board of Trustees v Ministry of Education.28 In that case, the Board of Trustees sought judicial review against a ministerial decision to close Aorangi Primary School. The review was based on claims that the decision was vitiated as a result of inadequate consultation, breaches of natural justice and unreasonableness. It was argued that the Minister had wrongly failed to disclose to the Board in the course of the consultation copies of the working papers for the critical
22 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).
23 At 676.
24 At 683.
25 At 683.
26 At 684.
27 At 675.
28 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC).
cost benefit analysis undertaken to justify the closure and of an Ernst & Young report analysing the costs and benefits.
[47]French J pointed out:
(a)Consultation was 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.
(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.29
(d)The extent and nature of the necessary consultation should be proportionate to the significance of the proposal.
[48] Her Honour emphasised that it was not for the Judge on review to assess the wisdom or merits of the decision or decide whether the outcome was right or wrong.30 The focus was on process. The Judge went on to distil the following principles from the case law:31
(i)Whether or not necessary consultation has occurred requires a consideration in each case of the particular facts, the significance of consultation in terms of the relevant statutory scheme, and a common-sense approach to what is required as a matter of law in the particular case (Manawatu Polytechnic v Attorney-General HC Wellington CP324/97, 15 December 1997).
(ii)What is meaningful, that is, “true”, consultation, its extent, how far it goes and for how long is a question of fact and degree.
(iii)Consultation is not a negotiation. It does not require ultimate agreement. Nor does it necessarily require or involve an ongoing
29 At [36(iv)].
30 At [8].
31 At [36].
dialogue over a protracted period. What it does require is open-minded communication and hearing the voice of others who are given the opportunity and right to be heard. The party obliged to consult – in this case the Minister – must keep his/her mind open, consider what has been said and be ready to change and even start afresh (Walsh v Pharmaceutical Management Agency [2010] NZAR 101 (HC)).
(iv)Consultation also requires that the consultee know what is being proposed and be sufficiently informed so as to be able to make an intelligent and useful response (Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA)).
(v)The more significant the decision, the more cogent the consultation may have to be. A ministerial decision to close a school is recognised by the Education Act to be an important decision (Heke v Attorney-General HC Whangarei M9/95, 8 February 1995).
[49]In summary, French J put it in this way:32
… the question 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.
[50] The Board had complained that it was never provided with underlying working papers on which the cost calculations were based. The Ministry had undertaken a comparison of costs of rebuilding with costs of closing the school. Those underlying working papers had been independently reviewed by Ernst & Young, which had confirmed the process for estimating capital and operating costs involved the use of standard templates.33 After the decision was made, the Minister gave the Board a copy of the Ernst & Young report and yet later the Board also obtained copies of the standard templates, which it had its own accountant, Staples Rodway, analyse.
[51] Staples Rodway was commissioned by the Board to prepare a second report (after the Minister’s decision) questioning the validity of the standard templates on various grounds, including the suitability of the templates for the nature of the school, and it came up with a radically different calculation.34
32 At [42].
33 At [54].
34 At [56].
Disclosure
[52] The Judge in Aorangi School Board rejected the submission that the Board should have been supplied with the Ernst & Young report and the underlying working papers largely and fundamentally because there was no such obligation of disclosure. She said: 35
… While consultation undoubtedly requires the provision of relevant information, it does not require chapter and verse. Consultation is not litigation, nor is it a process akin to that of discovery (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (CA)):
[112] … It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.
[53] In Aorangi School Board, the Judge warned that it was inappropriate to elevate the consultation obligation to:36
… an impractical level where a consulted party would be able to insist on being provided with every last detail on an issue to enable it to make its own independent analysis. Consultation would become litigation, with discovery, which is something the courts had expressly stated it is not.
[54] In that case, her Honour noted the Board did have the substance of what was being consulted over and a wealth of material, some of it through its own efforts.37
Unreasonableness
[55] French J also reiterated the well-known test for unreasonableness in public law terms in that case as follows:
35 At [60].
36 At [85].
37 At [86].
[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 …
Mandatory considerations
[56] Cooke J set out the guiding principles on this topic in CREEDNZ Inc v Governor-General.38 He said:39
What has to emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.
Questions of degree here can arise and it would be dangerous to dogmatise. But it is safe to say that the more general and the more obviously important the consideration, the readier the Court must be to hold that Parliament must have meant it to be taken into account.
[57] The Court of Appeal reiterated these comments in 2012 in Secretary for Justice v Simes,40 in which the Court went on to note:
[50] In cases where the criteria stipulated are not exhaustive, or where none is specified, the considerations governing the exercise of discretion must be ascertained from the subject matter as well as the scope and objects of the relevant legislation: Keam v Minister of Works and Development. Decision makers must approach mandatory relevant considerations with due deliberation and an open mind. Mandatory considerations may not be “rebuffed … by a closed mind so as to make the statutory process some idle exercise”. However, the weight to be given to mandatory considerations is a matter for the decision maker.
Fettering discretion
[58] Whether or not a discretion is fettered in public law terms depends on whether the effects of the impugned influences or constraints said to affect the exercise of a discretion are within legally accepted limits. There may be limits and influences which inform or constrain the decisions which may fetter the decision-maker’s
38 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).
39 At 182–183.
40 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [49].
discretion in a real sense but do not rise to the level of being fettering in the public law sense.
[59] There are three general categories described as unacceptable fettering of discretion. The first is allowing someone else to exercise or control the discretion, described as “acting under dictation”.41 The second type of fettering is as a result of contracts that unacceptably restrict the future exercise of the decision-maker’s discretion. The final category is a self-imposed limit of an authority’s power to act.
[60] The essential feature of an unlawful fettering of discretion is that the authority with the power to decide did not generally exercise it. Of course, that is not to say it may not take into account guidance and views of others in reaching its decision.42
Decision-making framework
[61] Wellington Airport is a private limited liability company. It is part-owned (34 per cent) by Wellington City Council and the balance of the shareholding is by New Zealand Airports Ltd, a private investment vehicle. It operates for profit but has public interest overtones, particularly given its Council shareholder. For the purposes of these proceedings, arrangements were put in place to ensure there is no conflict between the directorship obligations of the Mayor, who sits as one of the Council-appointed directors on Wellington Airport.
[62] Wellington Airport has been an active participant and submitter on the LGWM strategy and projects. Traffic to and from the airport accounts for a substantial number of motor vehicles on Cobham Drive.
[63] Each of the three members of the LGWM partnership were established and operate under different legislation. Waka Kotahi is established by and functions under the Land Transport Management Act 2003. The Wellington City Council and the Greater Wellington Regional Council are both subject to the provisions of the
41 Graham Taylor Judicial Review: A New Zealand perspective (4th ed, LexisNexis, Wellington, 2018) at [15.71].
42 See for example Rendell v Release on Licence Board (1987) 10 NSWLR 499 (CA).
Local Government Act 2002, which dictates the approach to consultation and decision-making by local authorities.43
[64] The role of the LGWM Board and the relationship between Waka Kotahi, Wellington City Council and Wellington Regional Council is set out in a Relationship Management Agreement – Relationship and Funding Agreement, dated 14 February 2020 (the Relationship Agreement).44 The commitment under the agreement is that the parties will work “collaboratively and cooperatively” with each other to facilitate the delivery of an integrated transport package and, in particular, work together on the implementation and operations of detailed investigation and developments stage of the Regional Transport Network.45
[65] The agreement commits the parties to a collaborative working relationship and that there will be a “no surprises” approach to the performance and delivery of the functions under the agreement in relation to LGWM. At the same time, the statutory responsibilities of the parties are expressly acknowledged.46 The parties recognise that each of them has a particular statutory power, function or regulatory role and is bound by statutory responsibility. The agreement does not bind any of the parties to make a particular decision in relation to their respective statutory functions. If there is a conflict between the obligations under the agreement and a party’s statutory function, the statutory function prevails to the extent of the conflict.47 The Relationship Agreement provides for various tiers of interface between the two councils and Waka Kotahi. At a political or senior internal governance level, the relationship operates by way of an LGWM governance group established under the Relationship Agreement.48
[66] However, it is the Board which is established and maintained under the Relationship Agreement that is to provide “overall strategic direction and
43 Local Government Act 2002, s 82.
44 New Zealand Transport Agency, Wellington City Council and Wellington Regional Council Let’s Get Wellington Moving – Relationship and Funding Agreement (14 February 2020) [the Relationship Agreement].
45 Clause 1.3(a).
46 Clause 1.5.
47 Clause 1.5(b).
48 Clause 3.1.
decision-making for the investigations and developments forming part of the LGWM strategy”.49
[67] Each of the parties has one vote on the LGWM Board and all decisions must be unanimous.50 An LGWM programme director is appointed and reports to the Board.
[68] If a decision from the LGWM Board requires one of the parties to follow an internal decision-making process for obtaining internal approval, the representatives of the relevant party will follow the required processes to seek the internal determination or decision and report the decision back to the Board.51
[69] Mr David Dunlop, the Acting Programme Director for LGWM, in an affidavit indicated that in most contexts, Waka Kotahi was to be the procuring party or principal in relation to the goods or services from the third-party supplier.52 In practice, he said project teams could be comprised entirely or almost entirely of one partner, agency or a mixture of partners or agencies.53
[70] The LGWM principles are set out in sch 3 of the Relationship Agreement. The “guiding principles” included principles such as “accessible, healthy and safe” and “better public transport”.
[71] The LGWM Board endorsed the business case for the construction of the crossing. Waka Kotahi was the statutory agency which approved the crossing and its funding for the specific activity under s 20 of the Land Transport Management Act (the “activity” was the construction of the crossing).54
Statutory framework
[72]Section 20 of the Land Transport Management Act provides:
49 Clause 3.3(a).
50 Clause 3.3(e).
51 Clause 3.3(f).
52 Affidavit of David James Dunlop, 21 April 2022, at [25].
53 At [28].
54 Land Transport Management Act 2003, s 5 definition of “activity”.
20 Approval of activities and combinations of activities
(1)The Agency may approve an activity or combination of activities as qualifying for payments from the national land transport fund.
(2)In approving a proposed activity or combination of activities, the Agency must be satisfied that—
(a)the activity or combination of activities is included in the national land transport programme or qualifies under subsection (4); and
(b)the national land transport programme continues to meet the requirements of section 19B; and
(c)the activity or combination of activities is—
(i)consistent with the GPS on land transport; and
(ii)efficient and effective; and
(d)the activity or combination of activities contributes to the Agency’s objective; and
(e)the activity or combination of activities has, to the extent practicable, been assessed against other land transport options and alternatives; and
(f)the relevant consultation requirements of this Act have been complied with.
…
[73]“Activity” is defined under s 5 as follows:
activity—
(a)means a land transport output or capital project; and
(b)includes any combination of activities.
[74] The Land Transport Management Act is the key piece of legislation in relation to national transport. The purpose of the Act is to “contribute to an effective, efficient, and safe land transport system in the public interest.”55 Under that Act, the responsibility for preparing and approving regional land transport plans lies with the regional council of each region, which must approve the regional land transport plan by a date approved by Waka Kotahi.56 A regional land transport plan must be prepared
55 Section 3.
56 Section 13(1).
every six years.57 The core requirement is that the regional land transport plan contributes to the purpose of the Act and is consistent with the Government Policy Statement on Land Transport.58 It must set out the results the Crown wishes to achieve from the allocation of funding from the National Land Transport Fund over a period of at least 10 years, as well as the Crown’s Land Transport Investment Strategy and Policy on borrowing for the purpose of managing the National Land Transport programme.59
[75] The objective of the Waka Kotahi New Zealand Land Transport Agency under the Land Transport Management Act is to undertake its functions “in a way that contributes to an effective, efficient and safe land transport system in the public interest.”60 In order to do that, it has a number of functions which, in general terms, contribute to the objective of the Agency.61 The functions relate to regulatory, infrastructure planning and investment management, as well as general functions concerning the national land transport system.62 It is required to manage the state highway system and to oversee it, including planning, funding, design, supervision, construction, maintenance and operation.63
[76] Waka Kotahi has a duty to cooperate with “approved organisations”,64 which includes local authorities. Waka Kotahi and every local authority must also consider the needs of persons who are transport-disadvantaged.65
[77] Waka Kotahi has a Board appointed by the Minister and operates under a Statement of Intent prepared in terms of the Crown Entities Act 2004.66 Waka Kotahi must publish an annual report on the National Land Transport Fund. This must include financial information, a statement of commitments and a statement of performance, as well as an explanation of how the funding of activities contributes to the outcomes,
57 Section 13(1).
58 Government Policy Statement on Land Transport is issued pursuant to s 66 of the Land Transport Act.
59 Land Transport Management Act, s 68.
60 Section 94.
61 Section 95(1).
62 Section 95.
63 Section 95(h).
64 Section 38AA.
65 Section 35.
66 Section 100.
objectives or impacts set out in the relevant Government policy statement on land transport.67 Waka Kotahi must notify the relevant regional authority (or relevant regional transport committee) if it decides not to provide an activity or combination of activities in the National Land Transport programme or accord an activity a different priority to that accorded in the relevant regional land transport plan.68
[78] Waka Kotahi is a Crown Entity and is bound by the Crown Entities Act 2004. This safeguards the independence of Crown entities such as Waka Kotahi as follows:
113 Safeguarding independence of Crown entities
(1)This Act does not authorise a Minister to direct a Crown entity, or a member, employee, or office holder of a Crown entity,—
(a)in relation to a statutorily independent function; or
(b)requiring the performance or non-performance of a particular act, or the bringing about of a particular result, in respect of a particular person or persons.
(2)This Act does not change the way in which the following functions must be carried out under an entity’s Act:
(a)statutorily independent functions in an entity’s Act; or
(b)functions that are carried out by a person acting judicially in relation to a particular matter in accordance with an entity’s Act.
…
[79] Statutorily independent functions of Waka Kotahi are set out at s 95(2) of the Land Transport Management Act:
(2)The Agency’s statutorily independent functions are to—
(a)determine whether the particular activity should be included in a national land transport programme:
(b)approve activities or combinations of activities under section 20:
(c)approve procurement procedures under section 25.
(3)When performing a statutorily independent function,—
67 Section 11.
68 Section 19D.
(a)the Agency must act independently; and
(b)the Minister may not give directions to the Agency in relation to performing that function.
[80] The approval and funding of the construction of the crossing is such a statutory function.
The process
[81] The construction of the crossing is consistent with the Wellington regional land transport plan overseen by LGWM. This sets the direction for transport in the region for the next 10 to 30 years. It also covers rail and other transport.
[82] The regional land transport plan signals to Waka Kotahi the projects the region would be seeking funding for. Waka Kotahi then considers those projects as part of the National Land Transport programme. It includes the Ngauranga (north of Wellington city) to Wellington Airport corridor. A major strategy in the National Land Transport Programme is an MRT solution and Basin Reserve improvements which will support the MRT as well as improve walking and cycling connections and enhance the use of the Basin Reserve and improve amenities around the reserve. The plan envisages an extra Mt Victoria tunnel and a smarter transport network which is designed to encourage people to make better use of the public transport system and use their car less. As part of the three-year Recommended Programme for Investment (RPI) developed by LGWM under the strategy are a number of projects which concentrate on encouraging walking and cycling and safety in the central city. For instance, these include transforming the Golden Mile (Lambton Quay) by, in terms of the preferred option, removing private vehicle access in the area and closing various streets, as well as changing speed limits in most central cities from 50km/h to 30km/h, which has already been implemented.69
[83] One of the five projects identified in the three-year programme is the Cobham Drive crossing and safer State Highway 1 speeds. The move to a lowering of the speed limit to and from the airport and the city, consistent with that plan, has already occurred from the Mt Victoria tunnel (at the city end) through to Calabar Road
69 In June 2020, according to the Let’s Get Wellington Moving website < to the airport), which runs off Cobham Drive. As noted above, the Cobham Drive crossing construction is due to commence this month (May 2022) and the completion date is November 2022.
[84] LGWM endorsed the business case for the signalised crossing. The business case was largely prepared by Waka Kotahi. Once that had been approved or endorsed, the funding decision was sought from Waka Kotahi and approved under s 20 of the Land Transport Management Act. The funding estimate was $2.8 million.70 Each investment decision must be supported by a “business case”. This is, in the generic sense, a reasoned proposal to support investment in a particular phase of the project for which funding is sought.71
[85]The approval was determined by Waka Kotahi under delegated authority.
[86] Mr Dunlop is the Acting Programme Director for LGWM. He had been seconded from his role of Major Projects Director for a private consulting firm, WSP New Zealand Ltd (formerly Opus), for the last 12 months. He has been involved in transport planning since 1995.72
[87] Mr Dunlop provided an overview of LGWM. The RPI developed by LGWM, to which I have referred earlier, was developed in 2018. The programme included five focus areas:
(a)high quality walking and cycling;
(b)better transport with higher capacity — between high and capacity mass transit;
70 Dated 2 February 2022 between the Activity Class Manager (Nigel Hutt) and the team lead, Central and Lower North Island, Local Government Partnerships (Internal). The funding appears to be in the region of a $2.586 million cost to NZTA (Waka Kotahi) but a total cost of $3.956 million with a contribution by a third party.
71 Affidavit of Howard Lyndon Cattermole, dated 19 April 2022, at [34].
72 According to the affidavit of David Dunlop, at [3]-[4], Mr Dunlop holds an MSc in Planning Studies (focusing on transportation) from Oxford Brookes University and a Bachelor of Resource and Environmental Planning from Massey University. He holds the National Association of Public Participation (IAP2) certification and is a chartered member of the Chartered Institute of Logistics and Transport. He has 25 years of experience of planning assessment and design of transportation projects in New Zealand and the United Kingdom, working for a wide range of central government organisations, local and regional authorities and private developers.
(c)urban development land use changes and greater transport;
(d)smarter transport network with road pricing; and
(e)multi-modal state highway improvements.
[88] The members of the LGWM Governance Group had developed a funding model to seek support for an initial package of investments from Government ministers. The RPI included a list of “early delivery improvements” which were expected to be delivered by 2024. As I have noted, this included the Cobham Drive crossing as part of the central city and State Highway 1 walking, cycling and safe speeds project.
[89] The Minister of Transport, supported by the Mayor of Wellington and the Chair of GWRC, announced an $8 billion indicative package for LGWM in May 2019.73
[90] Mr Dunlop described LGWM’s decision-making in relation to the Cobham Drive crossing and speed review project. He noted that, in response to consultation undertaken on transport scenarios in a 2017 round of feedback, there had been submissions advocating for a crossing, bridge or underpass on Cobham Drive to enhance cyclist and pedestrian safety.74
[91] Following consultation, the LGWM October 2018 Recommended Programme of Investment report had listed under the heading “High Quality Walking and Cycling” a pedestrian crossing on Cobham Drive.75 The crossing was expected to help reduce the safety concerns on that part of the network and improve accessibility to the ASB Sports Centre and community facilities in Kilbirnie.
[92] The crossing was in a group of “early improvements” to be delivered by 2024 while investigation and design of larger programme elements was undertaken. The setting of safer speed limits in and around the city, including the lowering of the speed
73 At [16].
74 Global Research Ltd Let’s Get Wellington Moving: Full Analysis of Public Comments (March 2018) at 34, 93, 164 and 342.
75 LGWM October 2018 Recommended Programme of Investment (May 2019).
limit on Cobham Drive, was part of the same programme. In June 2019, the Wellington City Council had passed a resolution to consider options for a grade-separated crossing (underpass or overpass) on Cobham Drive in the context of future steps for mass transit.76 This project was the subject of workshops in September 2019 and would form the basis for the consultation document issued in June 2021 (the Case for Change report).77
[93] In December 2019, LGWM prepared a “System Design Improvement Memo” setting out the investment proposal for a crossing, noting that it closely aligned with GPS priorities of safety, access, environment and value for money.78 It was intended to move people in fewer vehicles and improve walking and cycling options. The document noted difficulties associated with a bridge or underpass, including the fact that LGWM would not be able to seek consent for a bridge or underpass until decisions were made on mass transit which could delay construction by at least five years. In the interim, the memo proposed an at-grade (road level) signalised crossing until decisions were made on mass transport. Following this, the LGWM replaced an earlier group and was established by the Relationship Agreement in February 2020.
[94] On 3 July 2020, the Coroner published a report on the death of Mrs Tahiran Bano, who died following a collision at Cobham Drive in March 2016. She had been attempting to cross the eastbound lanes of Cobham Drive at a place which did not afford her of a good view of traffic approaching from the east. The drivers travelling towards her had an equally poor view.
[95]The Coroner made recommendations in her report, as follows:79
At the time of the crash there were no pedestrian crossings, bridges or underpasses along the section of road where pedestrians can cross the road safely. There are limited means for those walking, especially from the eastern suburbs to follow the most direct yet safest route to the intended locations.
76 Affidavit of David Dunlop at [39].
77 Let’s Get Wellington Moving Cobham Crossing and Speed: Case for Change (24 June 2021) [Case for Change report].
78 System Design Improvement memo, dated 16 December 2019.
79 Detailed in the affidavit of David Dunlop at [44.1].
[96] On 24 June 2021, LGWM released its Case for Change report setting out the work that had been done underpinning the proposed Cobham Drive crossing and crossing speed review which was intended to guide consultation.80 The proposal was for an at-grade signalised crossing with a ramp to be constructed at one of various proposed locations on Cobham Drive.
[97] In the introduction of the Case for Change report it was described as a technical note to document the work underpinning the proposed Cobham Drive crossing and speed review. The introduction noted that the project upon which feedback was sought in the Case for Change report was a component of the LGWM three-year programme which had as priorities:
●Making travel by bus to and through the central city faster and more reliable; and
●Creating a better environment for people walking and on bikes.
[98] The Cobham Drive crossing and speed review project was to combine improvements for people walking and on bikes with changes to travel speeds on State Highway 1 within the programme area.
[99] The introduction noted the background had been compiled from the Cobham Crossing design assumptions report which was a working draft prepared document, the assumptions used in the concept design and a Speed Review Report for the State Highway 1 speed limit review from Mt Victoria to the airport. The content of the sections of the report was listed as follows:
●Transport context;
●Crossing problem statements and investment objectives;
●Crossing options assessment;
●Crossing details;
●Speed review; and
●Summary.
80 Mrs Bano’s death was also referred to in the Case for Change report, above n 77.
[100]The proposed improvements were summarised as follows:
●Implementing a signalised crossing on SH1 (Cobham Drive) between Troy Street and Evans Bay Parade to provide for improved active travel connections between Miramar and Kilbirnie;
●Reducing the speed limit on Ruahine Street from 70km/h to 50km/h; and
●Reducing the speed limit on Cobham Drive and Calabar Road from 70km/h to 60km/h.
[101] Reference was made in the report to the fact that LGWM was considering a range of potential future improvements in the area, including the City Streets package for the public transport improvements between the city and Kilbirnie and Kilbirnie and Miramar over a medium-term timeframe (within 10 years) and a Mass Transit Service to Miramar and the airport in the longer-term. The report noted that “[g]iven the poor safety record of this particular corridor, coupled with the growth in pedestrian and cycling activity in the area, we need to provide a safe crossing as soon as possible”.81
[102] The Case for Change report then went on to note the current travel demands, noting the daily average number of vehicles using Cobham Drive, as at 2019, was 35,000 (two-way) and approximately 225 cyclists use the Cobham Drive path in the two-hour morning peak period and in the weekend 118 cyclists use the path in a four-hour period. Current travel performance times were set out in tables in the report.82
[103] The crossing problem statements and investment activities were set out in the report as follows:83
3.1Problem statements
The following problem statements have been identified for the crossing:
●Lack of safe crossing options causes people to take risks potentially leading to death and serious injury;
81 At 6.
82 At 7.
83 At 9.
●High traffic volumes and speed severe access between Miramar Peninsula and Kilbirnie by walking and cycling leading to increased use of motor vehicles; and
●Cobham Drive is a critical regional link connecting the airport and Wellington CBD where travel time reliability needs to be considered.
3.2Evidence to support the problem statements
The following evidence supports the problem statements:
●1.8 kilometres with no formal crossing facility east of Evans Bay Parade (refer Figure 4 below which shows that there are no safe crossing facilities along Cobham Drive which acts as a barrier for people wishing to travel between Miramar and Kilbirnie).
●Between 2011 and 2021 there has been one fatal and one serious pedestrian crossing crashes across Cobham Drive. During the same time period, one serious injury and four minor injury cycle crashes occurred along the route.
Other factors influencing the need for a crossing include:
●People accessing sports/community/education facilities south of SH1 (Kilbirnie);
●Evidence of informal/unsafe crossings;
●Probable suppressed demand: people don’t cycle to work and parents driving kids to school and sport given the lack of safe crossing facilities;
●New Cobham Drive and Evans Bay cycleways and Miramar developments are projected to increase the number of people needing to cross Cobham Drive to an estimated 250 people per day; and
●Community, stakeholder and political requests for a crossing.
3.3Project objectives
●Improve safety for people walking and cycling between Miramar and Kilbirnie via Cobham Drive;
●Improve connections to existing/planned walking, cycling and public transport infrastructure to increase the choice of walking or cycling to access social and economic opportunities; and
●Maintain predictable and acceptable journey times and throughput to key regional destinations (airport and CBD).
[104] The report went on to set out the crossing options assessment, noting that 12 potential options for a crossing had been considered and showing where those locations were on a map. Connectivity implications for different locations of the
crossing were shown in a diagram showing how the various areas in the location would be connected and where additional crossings might be required if a particular location for a crossing was chosen.84
[105] A table describing some of the key crossing form differentiators and the positives and negatives of the options set out the likely outcomes for the use of at-grade signals, a bridge or an underpass as they affected travel time for pedestrians and people on bikes, access for mobility impaired, travel time for vehicles, impacts on the over dimension route, safety impacts and compliance. A bridge and underpass scored most highly (three ticks) for travel time for pedestrians and people on bikes compared to an at-grade signal (two ticks compared to three ticks for bridge and underpass). Level access scored higher on the mobility impaired differential than did bridges or overpasses, which were more difficult for mobility-impaired persons to navigate. Bridges and overpass also scored more highly than an at-grade signal for safety impacts (three ticks as opposed to two ticks). There was no implication for travel time for vehicles if a bridge or overpass solution was constructed. A negative under compliance for at-grade signals was that when there were breaks in traffic, people might be encouraged to cross downstream of the signals. However, both the bridge and the underpass scored worse on compliance because indirect routes result in non- compliance and an added issue with an underpass would be personal safety.85
[106]Insofar as cost was concerned, the at-grade signal cost was put in the range of
$0.8-$1.2 million, the bridge at $10-17 million and the underpass at $10-17 million. Only the bridge scored badly for visual impact. In relation to construction disruption, at-grade signals would cause the lowest disruption. Moderate disruption could be expected with a bridge and high disruption for an underpass.
[107] Under the table setting out the differentiators of the options, the comment was made that at-grade signals aligned well with the investment objectives of improved safety and improved connectivity, but potentially impacted on the reliability of journeys, though adding less than 2.5 per cent additional travel time. It was noted the at-grade crossing had a significantly lower cost and lower construction impact than
84 At 12.
85 At 14.
the other options but may not be as well-supported by the public and stakeholders. It was noted a bridge would align well with the investment objectives of not impacting on the reliability of journeys and would separate vulnerable users of the crossing from traffic, thus improving safety. However, the vertical change in ramp level might discourage use and lead to vulnerable users continuing to cross on the state highway. It also had visual impacts and property impacts as well as a relatively high cost.
[108] A cost benefit analysis was set out based on the Austroads tool used in the preparation of business cases, which converts the factors which form the costs or benefits into monetary terms. The net benefit figure was generated by the tool, giving the BCR range. The grade separation gave a lower BCR than signals.86 The technical preferred solution was set out as the at-grade signalised pedestrian crossing because it would deliver improved access, especially for mobility-impaired pedestrians, as well as safety for pedestrians. It was a significantly lower cost than grade-separated options and the construction and operational impacts of signals and raised platforms, which were proposed, were expected to have a minor impact on the duration of typical journeys along the corridor.
[109] The report noted that a grade-separated solution would provide higher safety benefits, with the additional cost to achieve the additional benefit significantly higher. It would also require resource consent and potentially require property purchase which would delay implementation in the realisation of any safety benefit.87
[110] The proposal in the report is that the proposed crossing would have signals, a raised safety platform to slow the speed of vehicles travelling through the crossing to 40km/h (from the proposed speed limit of 60km/h) and the crossings would be staggered on either side of the road to allow two crossings to be operated separately, minimising the impacts on the reliability of journeys.
[111] The report noted the Waka Kotahi standard safety investigation toolkit indicated a mid-block raised pedestrian crossing was expected to result in a 40 per cent reduction in deaths and serious injuries. It would delay crossing users by
86 At 16.
87 At 17.
approximately 45 seconds and vehicles by less than 15 seconds. The queues caused by the crossing were not expected to reach adjacent intersections. The delays did not consider the current impact of adjacent intersections and congestions, which might mean at peak times the crossing would not increase overall travel times.88 The conclusion was that travel times for two routes along the intersection were generally 10 minutes or more and therefore an additional 15 seconds of delay would not significantly change the time taken to travel the corridor.
[112] The report went on to describe the reasons for the speed review. The speed limits are now in place along Cobham Drive. The judicial review was not directed at the new speed limits, although they will be a factor influencing travel times and the net contribution of delay by the proposed crossing on Cobham Drive. The speed in the relevant area has been reduced from 70 km/h to 60 km/h.
[113] The consultation document connected the crossing to the following project/investment objectives:89
●the lack of safe crossing options causes people to take risks potentially leading to death and serious injury;
●improve connections to existing/planned walking, cycling and public transport infrastructure to increase the choice of walking or cycling to access social and economic opportunities; and
●maintain predictable and acceptable journey times and throughput to key regional destinations (airport and CBD).
[114] The Case for Change report calculated the theoretical increase in travel along the corridor due to the speed review would be 33 seconds. It acknowledged the actual impact on speed would be lower as current average speeds along the corridor were lower than the current posted speeds.90 The report noted that travel times for the two routes that use this corridor were generally 10 minutes or more and that any increase in travel time associated with the change would not significantly change the time taken to travel the corridor.
88 At 21.
89 At 9.
90 At 27.
[115] The Waka Kotahi decision making involved the concerned project manager usually developing a business case to assess the investment priority. The business case here was prepared according to standard Waka Kotahi processes which enable the prioritisation of projects for funding from the National Land Transport Fund. There is a quality assurance process which, for projects less than $50 million, involves assessment by investment advisors in the local government partnerships team of Waka Kotahi. A Delegations Committee assesses the funding request and information submitted to it. That committee is comprised of senior Waka Kotahi managers from a variety of business units. It relies on the assessment of the business case quality to determine its readiness. The Delegations Committee provides recommendations to the Chief Financial Officer in terms of the funding. The key question for the Chief Financial Officer who receives the funding request is the expected affordability of the project.
[116] The detailed delegation policy was set out in the affidavit of Mr Howard Cattermole, the Chief Financial Officer for Waka Kotahi. Mr Cattermole is responsible for all aspects of financial management, financial operations and financial planning for Waka Kotahi. He also has responsibility for investment assurance and organisational performance.91 He holds the management delegations to exercise this statutory power under s 20 to approve funding. He made the decision to approve the funding. However, the decision-making also included input from the Business Unit Manager.
[117] Mr Cattermole described the decision-making in relation to the Waka Kotahi Cobham Drive crossing as follows:
(a)The LGWM programme was included in the 2018 and the 2021 National Land Transport Plan.
(b)The Waka Kotahi Board endorsed the LGWM-recommended programme of investment in October 2018. The Board paper noted that “at-grade Cobham Drive pedestrian and cycle crossing signals” and “setting safer speed limits (in the central city and on State Highway 1
91 Affidavit of Howard Lyndon Cattermole, 19 April 2022, at [3].
east of Mt Victoria” had been identified by the LGWM governance group as one of a number of “low-cost improvements to be progressed in the short-term” as part of the programme.
(c)In July 2019, the Waka Kotahi Board approved, subject to confirmation of funding availability and delegated to the Chief Executive, release of funding for the LGWM programme, including the development of early delivery packages of $3.9 million in the National Land Transport programme. An associated Board paper explained the purpose of the early delivery programme is to make a start in implementing the strategic approach of LGWM with works that could be delivered in the short-term while the larger and more complex components of the programme was still being developed. The early delivery programme included the Cobham Drive crossing.
(d)Waka Kotahi released funding for the business case phase of the Cobham Drive crossing project and, subsequently, the first version business case was completed in February 2020.
(e)The Cobham Drive crossing was subject to Investment Quality Assurance by the Local Government Partnership team and Waka Kotahi which provided an Investment Quality Assurance statement in relation to the business case.
[118] The business case was approved by the Waka Kotahi/Delegations Committee which endorsed the next phase funding request recommending that the funding be approved. The minutes record the reason for the recommendation:
By investing in the improvements outlined, the key benefit will be an improvement to the safety along this section of State Highway 1, particularly for active mode users.
●We note that the BCR92 is 1.2.
●The requirements of s 20 of the Land Transport Management Act 2003 have been met.
92 Benefit Cost Ratio.
[119] Mr Cattermole then recommended that the Chief Executive approve the funding with total costs of $2.808 million for the construction of the Cobham Drive crossing improvement from the walking and cycling activity class. Mr Cattermole in his affidavit noted that the business case had a high alignment with the Government Policy Statement (GPS), in particular that since 2018 there had been a strategic shift from “economic growth and productivity” to an emphasis on safety, environmental outcomes and mode shifts.93 “Mode shift” refers to getting people to walk or cycle rather than drive cars. Therefore, a pedestrian crossing designed to enhance pedestrian safety and increasing access to the new cycleway facilities which had been constructed alongside Cobham Drive was seen to be strongly promoting the GPS priorities and consistent with the strategic shift in Government transport policy. In addition, the LGWM programme was included as a Government commitment in the GPS.
[120] Consultation on the crossing took place from 30 June to 28 July 2021. The materials consisted of information about the project posted on the LGWM website, a copy of the Case for Change report posted on the website and a document headed “East of Mount Victoria. Consultation Document/30 June 2021. Safer speeds and Cobham Drive Crossing”, a 4-page summary of the preferred option inviting views on the preferred option.
[121] The “East of Mount Victoria” summary said: “We want your views on our proposed crossing of Cobham Drive”. Under the heading “Why was this option chosen?” it said that:94
… We investigated and weighed a number of alternatives to select this option. We considered four crossing locations, and crossings over, under, and at the same level as the road. We have heard the community’s calls for a bridge or underpass crossing and considered these options, but neither can provide safety benefits in the short term. An initial analysis of costs and benefits shows that a crossing controlled by traffic lights is the most cost-effective way to provide a crossing. This option can be built the earliest, providing a safe way to cross as soon as possible. A crossing at road level will also be easier for many people (including people using wheelchairs or with children in prams) as it doesn’t need long ramps or stairs.
[190] Similarly, Wellington Airport suggests that Waka Kotahi was required to assess whether the crossing would be inconsistent with an MRT solution. The development of the MRT strategy was a longer-term development. There is nothing preventing the implementation of short-term activities as envisaged in the LGWM three-year plan. In addition the board indicated that the longer term options needed to be borne in mind and progressed.
Failure to take into account the Traffic Control Devices Rule
[191] The applicant also contended that TCD Rule was a necessary prerequisite to the decision to fund and construct the crossing.
[192] The rule specifies requirements for the design, construction, installation, operation and maintenance of traffic control devices and the functions and responsibilities of road control of authorities in providing traffic control devices “to
give effect to their decisions on the control of traffic”.126 A “traffic control device” includes a traffic signal.127
[193] The applicant says that the Rule is a mandatory relevant consideration for approving the installation and operation of traffic control devices and that Waka Kotahi could not make a decision to proceed with the construction of signalised crossings without first satisfying itself that the requirements had been met — in particular, that lights in that location would be “desirable”, “contribute to the safe and effective control of traffic” and be “appropriate for the road”. There is no record of any consideration by Waka Kotahi of the rule.
[194] The TCD Rule was made by the Minister pursuant to s 152 of the Land Transport Act. That section provides for the Minister to make rules concerning roads, regulate their use and to provide for the design, construction, maintenance and operation of traffic control devices.
[195]The Objective of the TCD Rule reads as follows:
Land Transport Rule: Traffic Control Devices 2004 specifies the requirements for the design, construction, installation, operation and maintenance of traffic control devices, and sets out the functions and responsibilities of road controlling authorities in providing traffic control devices to give effect to their decisions on the control of traffic.
This rule clarifies, consolidates and rationalises the existing requirements for traffic control devices. It addresses the risks to land transport safety arising from the use of traffic control devices.
The objective of the rule is to contribute to a safe and efficient road network by ensuring that traffic is controlled by means of traffic control devices that are safe, appropriate, effective and uniform and are applied in a consistent manner.
The purpose of this rule is to contribute to the safe and efficient operation of our road network by:
-requiring uniformity in the form, appearance and placement of traffic control devices;
-establishing minimum standards for traffic control devices;
-specifying who may authorise and install traffic control devices;
126 Land Transport Rule: Traffic Control Devices 2004, r 1.2.
127 Rule 6.1.
-ensuring that road controlling authorities have regard to safe practice in the design and installation of traffic control devices and how they are used for traffic management.
The rule states who is responsible for ensuring compliance with its requirements: road controlling authorities, rail operators, operators of hand-held ‘Stop’ signs, school patrols and all other road users.
[196]Rule 2.1(2) states:
2.1(2) A road controlling authority may authorise and, as appropriate, install, operate or remove traffic control devices:
(a)if desirable for the guidance of traffic or to draw attention to a requirement that controls traffic; or
(b)to provide information to road users.
[197] Waka Kotahi says that it is obvious that it considered a signalised crossing was “desirable for the guidance of traffic”. Waka Kotahi said it had undertaken the necessary safety assessment to satisfy itself that the signalised crossing was appropriate. It pointed out that another feature of the Austroads tool, as is apparent from the affidavit of Mr Thornton, includes “feasibility analysis”, which indicates the appropriate crossing types given variables relevant to the crossing, such as the speed limit of the road. Waka Kotahi says this also points to it being sufficiently satisfied that the signal was “desirable”, in the terms of the rule.
[198] This issue will be for the Judge hearing the full application to determine. However, as Clifford J, in considering the rule in Hutt City Council v O’Connor, concluded:128
… The TCD Rule is, properly interpreted, intended to relate to the devices used to give effect to decisions relating to the control of traffic (traffic control devices) as opposed to empowering the making of those decisions.
Accordingly, even if it was found that Waka Kotahi did fail to properly consider the TCD Rule, on its own this issue would not seem to me to highlight a fatal error in the decision-making.
128 Hutt City Council v O’Connor [2014] NZHC 2290 at [28] (emphasis added).
Third cause of action — unreasonableness
[199] I have outlined briefly the law in relation to public law unreasonableness above. I am of the view that my analysis for unreasonableness directly from my analysis of the other heads of review. As will be evident, my initial assessment is that the decision does not represent one that reaches the high threshold of being “so unreasonable no rational decision maker could have come to it” and as such do not make any further assessment of this head of review at this stage in the proceedings.
Fourth cause of action — fettering/constrained process
[200] In this case there was a preliminary decision made by LGWM to approve the business case for the construction of the crossing. While each of the members of the partnership were established and governed by legislation, including Waka Kotahi, the object of the partnership appears to have been to cooperate and bring the members’ joint expertise and representation to bear on the project under examination. The only statutory decision was made by Waka Kotahi to both construct and fund the crossing.
[201] The applicant in this case alleges that the discretion both of LGWM and of Waka Kotahi was fettered because the decision was the result of a “constrained process”. The constraints alleged were that LGWM was under pressure to achieve visible progress on “early delivery projects”, to deliver a solution for Cobham Drive as soon as possible and to meet commitments made to the Minister of Transport to start construction on a Cobham Drive solution in 2021. It is alleged that these constraints led to consultation on only one option for the Cobham Drive crossing.
[202] Fettering is further said to be supported by the fact that Waka Kotahi approved pre-implementation expenditure on the crossing before the public consultation was conducted. In addition, LGWM chose to analyse the proposal using a “lite” business case model which was not suitable for the nature of the project and improperly constrained the analysis. This foreclosed enquiry into other options that would deliver safety options quickly (such as barriers) or a crossing that would be consistent with the long-term MRT while LGWM investigated alternative long-term options. The combined effect of the decisions and considerations pleaded by the applicant
precluded the ability of LGWM and Waka Kotahi to make any decision other than to proceed with the crossing on Cobham Drive.
[203] Wellington Airport points to the political pressure to get an early deliverable and says that influenced LGWM and Waka Kotahi to decide on a suboptimal crossing. Wellington Airport points to comments in the business case and says that the documentary record shows that LGWM and Waka Kotahi took into account:
(a)delays caused by LGWM’s own internal processes;
(b)political pressure and reputational implications arising out of those delays;
(c)LGWM’s failure to make meaningful progress on projects elsewhere in the city; and
(d)commitments made on behalf of LGWM Board to the Minister that construction would begin by a certain time.
[204] It points to documents such as the Waka Kotahi business case which refers to LGWM being under considerable pressure to deliver and the Cobham Drive safety improvement is seen as an early deliverable to make considerable safety improvements “as well as gaining goodwill for LGWM”. The business case refers to the significant two-year delay caused by the LGWM health review and COVID-19. It also refers to promises made to the Minister on behalf of the LGWM Board that construction would begin in 2021 and the project facing significant political pressure, with both central and local government critiquing all aspects.
[205] At the same time, the business case focuses on the benefit of implementing an “at-grade signalised crossing as soon as possible to achieve the safety benefits”. It notes that the at-grade crossing is the best-performing against investment objectives, “realising benefits and value for money, keeping in mind current demand”.
[206] In simple terms, the fettering is said to be because only a signalised level crossing was considered. While there were a number of options for crossings (for
instance, a zebra crossing, which did not have signals or an overpass/underpass), the proposal for a crossing was predetermined, the consultation narrowed, and the decision fettered because of that. That fettering is said to have occurred because of the need to show “early delivery” of the project and political pressure.
[207] From a public law point of view, the claim appears to suggest predetermination, which is not specifically pleaded, as well as a fettering by permitting an outside authority to have a determinative say in the matter — in this case, the Minister — as well as the need to provide an early project delivery. The allegation is these influences worked to constrain LGWM and Waka Kotahi’s discretion in decision-making.
[208] However, Wellington Airport does not suggest there was a direct ministerial direction to construct the crossing but merely pressure brought to bear to deliver a results quickly. The evidence does not support the allegation of fettering in the public law sense at this stage. Moreover, even assuming there were some errors in the business case, it remains clear that the technical documents, including the MCA workshop materials and the business case, suggested an overpass or underpass would be significantly more expensive, even if scaled down as suggested by Wellington Airport. An overpass would also not be completed for some years and, therefore, the safety issues would remain, in general terms, not addressed. A crossing of some type was always intended to be an early deliverable.
[209] The fettering of discretion requires something more than a recognition of reputational risk and political pressure to deliver. No doubt this issue will be the subject of more detailed submissions. However, the material provided to date would not support an allegation that Waka Kotahi was “acting under dictation”.
Provisional assessment on the merits of the substantive application
[210] At this interim stage I cannot make definitive findings on the strength of the application for judicial review. However, my preliminary assessment based on the material before me indicates that the case is not unduly strong it should be borne in mind that while I have heard considerable argument on this matter, this is not the final determination of the application and my views are based only on the information I have before me.
Interim relief
[211] The factors governing whether or not interim relief should be granted require consideration of the statutory threshold of whether the necessity to preserve the position of the applicant has been achieved. There is then a wide discretion, which will include all the circumstances of the case, including the strength or weakness of the claim, the public interest and the private and public repercussions of granting relief.
[212]I therefore now turn to consider the statutory threshold.
Necessity to preserve the position of the applicant
[213] The applicant says that it would be affected because the vehicle movements to and from the airport make up approximately half of the 35,000 vehicle movements along Cobham Drive each day.
[214] The cost of the time delay was estimated by Waka Kotahi at $340,000 for the purposes of its analysis. Wellington Airport says that is far too low. The difficulties of establishing the cost of time delay are myriad. It is an involves a number of assumptions which require judgement calls.
[215] Wellington Airport says not only will airport customers be affected by delays, but businesses based at the airport, such as the hotel, as well as residents and other businesses, such as taxis, will be affected. It purports to be representative at some level of all of those interests.
[216] The manner in which Wellington Airport is said to be affected may be summarised as follows:
(a)delays to its customers who are taking and returning from air travel, who travel to and from the airport;
(b)delay inconveniencing travellers to and staff at businesses operating at the airport, such as the hotel, to and from the airport;
(c)taxis and other small and large businesses who operate from the airport (whom Wellington Airport is said to informally represent) will suffer traffic delays, and these will detrimentally affect their businesses;
(d)increase in the commute time in motor vehicles to and from the airport will affect the airport commute time which will in turn adversely affect the general reputation of the airport, which will flow on to the airport services; and
(e)residents (whom it also is said to informally represent) will face traffic delays in their commuting and travelling in the relevant localities.
[217] In addition, Wellington Airport noted that one of the effects of allowing the construction of the crossing to commence might be to delay a better solution for the crossing such as an overpass or even the MRT strategy. This arguments rests on the suggestion that once the immediate problem of safety for pedestrians and cyclists is dealt with by constructing a level signalised crossing the pressure for a medium- or longer-term solution will be allayed. In addition, the applicant says that it is not in the public interest that Waka Kotahi use public funds for construction when the project may well be stopped by a final injunction.
[218] The period for which the position is to be preserved is from the commencement of construction. While the hearing is set down for 20–21 July 2022, a decision will not be delivered until some time after that. The period for which the interim order is sought amounts to almost three months, including the time that Waka Kotahi has agreed to delay construction pending the outcome of this decision.
[219] Turning to the factors raised by Wellington Airport, the overriding factor is delay. I do not consider the translation of the delay into a net present value is of much assistance in assessing whether there is a position to be preserved. That delay is an intangible factor, and while monetising it is appropriate for the purposes of a business case, to do so for the purposes of this analysis leads the Court to an assessment of the financial implications. This was an assessment which was required to be carried out in the Criminal Bar Association case. In that case even with information suggesting
there would be significant financial implications for some legal aid providers, the Court was not satisfied and required firm evidence as to actual costs. That cannot be supplied here.
[220] Nevertheless, delay is an issue. No doubt there will be delays caused by the construction at some level. However, with the lowering of the speed limit, it is difficult to assess the level of the delays, as there will be a need to slow on both the approaches and through the relevant area in any event. Considering the evidence that has been produced, I am not persuaded that the delay would be significant in terms of the estimated trip to and from the airport and Wellington city. As a general observation it compares favourably with the transport time to and from airports in many other New Zealand cities. The additional delays suggested even by Mr Murray’s higher assumptions suggests the average delay will be measured in seconds. I do not consider the delay supports a position to be preserved by the airport. Nor do I consider that delays contributing to the less tangible airport “reputation” and similar factors are such as to amount to a position to be preserved.
[221] I accept there will be delays caused to traffic by the construction between now and the substantive hearing. That will be dealt with on the basis of a tailored traffic management plan. However, at most this will cause inconvenience and frustration. If the applicant is successful in obtaining final orders in due course, the construction will be stopped and any longer-term detriment to Wellington Airport by the crossing will not eventuate.
[222] The issue of whether Waka Kotahi should spend public funds on the construction when there is a possibility it may not be allowed to proceed, or at least will be delayed, is a matter in favour of granting an injunction. Indeed, it is a matter which might properly be taken into account in the exercise of my discretion. However, I do not consider it adds greatly in favour of granting an interim injunction. First, as I have indicated I do not consider the merits of the case are strong at this stage. Secondly, Waka Kotahi is charged with management of the funding. It is noteworthy that it has made an assessment that it wishes to continue with construction despite the application. It has a construction timetable that no doubt it wishes to keep to, and evidently it considers the risk is worth taking. It has also considered the options for
deconstruction if the application is granted and these would cause minimal disruption to traffic.
[223] In the course of argument it was suggested that a factor relevant to preserving the position might be the safety of pedestrians and cyclists. This is largely because Wellington Airport says the crossing is a suboptimal solution. However, it is common ground that Wellington Airport’s preferred option of an overpass is some years down the track. Therefore, the safety factor is also not a factor weighing in favour of the granting of an interim injunction.
[224] I am not persuaded that Wellington Airport has any position to preserve in the circumstances. There will no doubt be delays to traffic if construction is commenced immediately by the road works required for the construction that will be in place until November 2022. However, that disruption would be caused regardless of the nature of the crossing constructed. While there is an argument to say that it may result in another lot of construction if it is determined an overpass should be built, I do not consider that is a significant consideration at this stage of proceedings.
[225] Conversely, from the point of view of Waka Kotahi, there has already been considerable delay and it is necessary to move to deal with the safety issues in a timely manner. The safety concerns that inform the decision to construct the crossing remain. It has put in place arrangements to undertake the construction. The present arrangements allow the construction to be completed before the Christmas period. It appears to me this factor also weighs in favour of dismissing the application, although it is more appropriately a matter to take into account in the exercise of my discretion.
[226]Therefore, I do not consider the statutory threshold has been met.
Discretion on the circumstances of the case
[227]If I am wrong, I go on to consider the discretion.
[228] First, as I have outlined above, I do not consider that the merits of judicial review are strong.
[229] Other considerations which would lead me to a conclusion that the balance favours dismissal of the interim application are that the crossing accords with Waka Kotahi’s guiding principles, the Government Policy Statement on Land Transport and the LGWM plans.
[230] The public interest appears in general terms to be served by the construction of the crossing. Safety is an overriding factor in favour of the construction of the crossing as proposed and has been throughout. There have been delays in bringing this project to fruition. Regardless of the cause of those delays, they have added to the urgency of constructing a crossing on this portion of State Highway 1. The applicant says there is no evidence that the crossing proposed will provide safety for pedestrians and cyclists, given the fatality and the other accidents do not appear to have been on the site or close to the proposed crossing. However, Waka Kotahi is the expert in these matters. Its expert evidence was uncontested insofar that the proposed crossing would increase the safety of pedestrians and cyclists seeking to cross State Highway 1. It has also carried out detailed analysis of the best place to site the crossing. While there was some criticism of the location, there was no expert evidence or analysis as to why the particular location was inappropriate other than the suggestion that Waka Kotahi should be required to prove that it would prevent fatalities or accidents. Even common sense dictates that a signalised crossing must improve the safety for those pedestrians and cyclists.
[231] I also note that while Wellington Airport submits that the interests of the estimated 35,000 motor vehicles per day passing over the relevant stretch of State Highway 1 should have been accorded more weight than the estimated 250 cyclists and other pedestrians using the area, the encouragement of pedestrians and motorists is a high priority in the LGWM overarching strategy and an important factor in the decision to build the crossing. This factor also weighs in favour of dismissing the application.
[232] In addition, while in the general scheme of things the date for hearing of the full application is reasonably soon, it is still over two months away. If the application were to be granted, construction time over that period would be lost, and, given the
length of delay already, even that delay weighs in favour of commencing the construction now.
Conclusion
[233] In conclusion, I am not satisfied that the applicant has a position to preserve. I therefore do not consider the statutory threshold has been met. In any case, the circumstances of the case, including the strength of the application for judicial review and the circumstances, also indicate I would exercise my discretion against granting an interim injunction.
[234]Accordingly, I conclude that the interim injunction should be dismissed.
Costs
[235] Counsel agree that costs should follow the event on a 2B basis. I order accordingly and certify for a junior counsel.
Grice J
Solicitors:
Morrison Kent, Wellington
Stout Street Chambers, Wellington Chapman Tripp, Wellington
Wellington City Council, Wellington
Greater Wellington Regional Council, Wellington
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