Red Light, Green Light for Wellington Transport Projects

Let’s Get Wellington Moving (LGWM) is a joint initiative between the Wellington City Council (WCC), the Greater Wellington Regional Council (GWRC) and Waka Kotahi NZ Transport Agency. Its task is to solve Wellington’s land transport problems. Two projects that form part of LGWM’s broader plans for the Capital have been the subject of legal proceedings. These cases make an interesting comparison, because, though similar in subject matter and subjected to the same approach to the statutory test, they produced opposite results.

Wellington International Airport Ltd v Waka Kotahi New Zealand Transport Agency [2022] NZHC 954

WIAL v Waka Kotahi involved a proposal by LGWM to construct an at-grade (level) signalled crossing on Cobham Drive, which lies between the city and the airport. The respondents (collectively, LGWM) claim the crossing will improve safety for walkers and cyclists in the area and are aiming to complete construction by the end of the year. The applicant (Wellington Airport) opposes the crossing due to the traffic delays that are likely to result and the indirect effects that may follow, such as reputational damage for the airport and increased costs for associated businesses.

In support of their application for an interim injunction, Wellington Airport challenged the lawfulness of LGWM’s decision-making process on four grounds, namely that LGWM:

1. Failed to consult in accordance with their obligations and did not provide the applicant with sufficient information;
2. Failed to consider relevant considerations;
3. Made an unreasonable decision; and
4. Failed to identify and assess alternative options and unlawfully fettered its discretion.

To grant an interim injunction, the Court must be satisfied that an interim order is necessary to preserve the position of the applicant [1]. In WIAL v Waka Kotahi, the judge, Grice J, considered that traffic delays were an “intangible” detriment and that any indirect consequences for the airport and associated businesses were “not able to be quantified with any degree of precision”. Accordingly, Wellington Airport failed to establish that an interim order was necessary to preserve its position.

Even if that statutory threshold had been established, Grice J found there were several discretionary considerations that, overall, favoured dismissing the application. On a preliminary assessment, Grice J found the “merits of the judicial review application were not unduly strong” and that “the evidence [did] not indicate a strong case”. She found there was significant material to enable Wellington Airport to make informed submissions, relevant considerations appeared to have been taken into account, the decision was not “so unreasonable that no rational decision-maker could have come to it”, and the allegation LGWM had fettered its discretion was not supported by the evidence.

The application for an interim injunction was dismissed and Wellington Airport subsequently withdrew its substantive judicial review claim.

N Bhana and Co Ltd v Wellington City Council [2022] NZHC 1338

Bhana v WCC centres on LGWM’s trial project to install improved cycleways and bus lanes from Newtown to the City. As part of this project, public parking along the route will be removed. Construction was already underway at the time the application was filed. The applicants (six Newtown businesses) allege that the project, and particularly the removal of parking spaces, will significantly impact the day-to-day operation and financial viability of their businesses.

The applicants challenged the lawfulness of the LGWM trial project on three grounds, namely:

1. The Council did not have the legal power to implement the project;
2. If it did, its decision-making process was unclear and flawed; and that
3. Its consultation process failed to meet the standards required in the Local Government Act 2002.

When considering whether the applicants had a necessary position or interest to preserve, the judge, Simon France J, considered that the impact the applicant businesses would experience if construction were allowed to continue would be “immediate and significant” and that a three-month delay in the cycleway construction would be unfortunate but reasonably negligible.

A key issue in this proceeding was whether the project could be lawfully implemented using the Council’s temporary traffic diversion powers. The applicants argued that despite possible tweaks to the design, the decision to construct the cycleway is a permanent one and that its six-month implementation and review after 6 to 12 months falls outside the Council’s power to permit temporary diversions. The Council claimed the materials used for construction were not permanent and that improvements to design may happen as a result of feedback. Simon France J considered that although there were arguments both ways, the applicants presented “enough material for a tenable challenge” to the lawfulness of the project.

Regarding the decision-making process, Simon France J found that, due to being in its early stages, it was not entirely clear what was considered by the decision-maker and that there was also a tenable challenge to the adequacy of the process. The alleged deficiencies in the consultation process were the least compelling and weakest ground, and the judge noted that the interim injunction would not have been granted solely because of the consultation issues.

To preserve the applicants’ position, and in light of the tenable arguments proffered by the applicants as to the lawfulness of the project, an interim injunction was granted. The substantive hearing is due to be heard in September 2022.

Summary

We take it from these cases that the Court is careful to maintain an absolute discretion, subject to the test of necessity. Whether the test is satisfied depends upon the facts of the individual case. A clear distinction in the position or interest the parties in WIAL v Waka Kotahi and Bhana v WCC were seeking to preserve was the tangibility, significance and immediacy of the consequences that were said to emerge from the continued implementation of the LGWM transport projects. The difference in the outcome of these proceedings was underpinned by the adequacy of supporting evidence to show there was a tenable challenge to the lawfulness of the projects’ implementation.

As local and regional councils across the country prepare to decarbonise and enhance their alternative transportation systems, there are likely to be flow-on effects for residents and businesses during these periods of transition. Legal challenges to projects such as those in WIAL v Waka Kotahi and Bhana v WCC are likely to become more frequent as a result, and in many cases, those seeking to review local government decisions will also seek to have proposed projects stopped until final determinations as to their lawfulness have been made by the Court.

Thank you to Sam Smith, Solicitor for writing this update.

[1] Section 15, Judicial Review Procedure Act 2016