Thorndon Quay Collective Incorporated v Wellington City Council - [2024] NZCA 316
Date of Judgment
15 July 2024
Decision
Thorndon Quay Collective Incorporated v Wellington City Council (PDF 428 KB)
Summary
Judicial review – Local Government Act
The application for leave to file further evidence is granted. The appeal is allowed. We make a declaration that the Wellington City Council’s decision-making processes in relation to the Decision did not comply with the Council’s obligations under s 77(1) of the Local Government Act 2002 (the LGA). The respondent must pay the appellant costs for a standard appeal on a band A basis together with usual disbursements. We certify for two counsel.
Thorndon Quay Collective Inc (TQC) is a collective of local businesses operating on or near Thorndon Quay in Wellington. The Council made a decision to reconfigure parking on Thorndon Quay from mainly angled parking to entirely parallel parking in order to enhance cyclist safety (the Decision). TQC filed a judicial review proceeding in the High Court challenging aspects of the Council’s decision-making processes.
The High Court found that none of TQC’s grounds of review had been made out under the LGA and accordingly dismissed the application. TQC now appeals.
Issue 1: Whether the Judge erred in his interpretation of s 76(3) of the LGA? Held: Yes, in part.
The Judge’s initial description of the decision-making requirements of s 76 of the LGA was inaccurate. However, this did not impact the outcome of the case, as the Judge’s analysis of TQC’s judicial review causes of action was consistent with the correct interpretation of s 76(3). The appeal judgment clarifies the correct interpretation of s 76(3).
Issue 2: Whether the Judge erred in finding that the Council had complied with its obligations under s 77(1) of the LGA? Held: Yes.
Section 77(1) of the LGA requires local authorities to seek to identify all reasonably practicable options for the achievement of the objective of a decision (here, cyclist safety) and to assess those options in terms of their advantages and disadvantages. Here, various potential options for addressing cyclist safety on Thorndon Quay, including those submitted by TQC, were reviewed and assessed by the Council’s Transport and Infrastructure Manager and his team. Only their recommended option, however, was submitted to the Planning and Environment Committee (the Planning Committee), the Council’s delegated decision-maker, for consideration. Such a process came perilously close to an unlawful sub-delegation and may well have resulted in the Planning Committee not having sufficient information to properly discharge its s 77(1) obligation to identify and assess all reasonably practicable options to improve cyclist safety on Thorndon Quay.
Issue 3: Whether the Judge erred in finding that the Council had complied with the information requirements for consultation under s 82 of the LGA? Held: No.
If the Council had complied with its s 77(1) obligation, which the Court found it did not, s 82A would not have applied to the consultation process the Council undertook in respect of the proposed traffic resolution.
Issue 4: Whether the Judge erred in finding that the Council had met the requirements of s 79 of the LGA? Held: No.
Given the large number of decisions that must be made by local authorities, of varying degrees of significance, the Court did not accept that s 79 necessarily envisages or requires local authorities to adopt a high level of formality when making the required “judgments” under s 79 as to how to best discharge its decision-making obligations. It can be inferred from the process the Planning Committee followed that it made judgments to the effect that the process it followed was appropriate in all the circumstances.
Issue 5: What is the appropriate relief?
The appropriate relief is a declaration that the Council’s decision-making processes did not comply with its obligations under s 77(1) of the LGA. The Court found that it was not appropriate to quash the Decision or direct that the angled parking on Thorndon Quay be restored. Matters have moved on since the Decision was made in 2021, and it appears that the Decision has largely been superseded by subsequent events and decisions that would have required the removal of the angled parking in any event. Further (and importantly), the evidence before the Court from road safety experts is that the road configuration prior to the Decision was unsafe and that the current configuration provides a greater degree of safety for cyclists. Even if the Decision had not been superseded by subsequent events (and therefore required reconsideration in accordance with a proper s 77(1) process), it would not therefore have been in the public interest to order the reinstatement of angled parking on Thorndon Quay pending any further reconsideration of the Decision. Rather, the declaration made, together with the guidance given in the judgment, should ensure that any future decisions made by the Council in relation to the Thorndon Quay/Hutt Rd Project will be made in accordance with a process that complies with the Council’s obligations under s 77(1) of the LGA.
The application for leave to file further evidence is granted. The appeal is allowed. We make a declaration that the Wellington City Council’s decision-making processes in relation to the Decision did not comply with the Council’s obligations under s 77(1) of the Local Government Act 2002 (the LGA). The respondent must pay the appellant costs for a standard appeal on a band A basis together with usual disbursements. We certify for two counsel.
Thorndon Quay Collective Inc (TQC) is a collective of local businesses operating on or near Thorndon Quay in Wellington. The Council made a decision to reconfigure parking on Thorndon Quay from mainly angled parking to entirely parallel parking in order to enhance cyclist safety (the Decision). TQC filed a judicial review proceeding in the High Court challenging aspects of the Council’s decision-making processes.
The High Court found that none of TQC’s grounds of review had been made out under the LGA and accordingly dismissed the application. TQC now appeals.
Issue 1: Whether the Judge erred in his interpretation of s 76(3) of the LGA? Held: Yes, in part.
The Judge’s initial description of the decision-making requirements of s 76 of the LGA was inaccurate. However, this did not impact the outcome of the case, as the Judge’s analysis of TQC’s judicial review causes of action was consistent with the correct interpretation of s 76(3). The appeal judgment clarifies the correct interpretation of s 76(3).
Issue 2: Whether the Judge erred in finding that the Council had complied with its obligations under s 77(1) of the LGA? Held: Yes.
Section 77(1) of the LGA requires local authorities to seek to identify all reasonably practicable options for the achievement of the objective of a decision (here, cyclist safety) and to assess those options in terms of their advantages and disadvantages. Here, various potential options for addressing cyclist safety on Thorndon Quay, including those submitted by TQC, were reviewed and assessed by the Council’s Transport and Infrastructure Manager and his team. Only their recommended option, however, was submitted to the Planning and Environment Committee (the Planning Committee), the Council’s delegated decision-maker, for consideration. Such a process came perilously close to an unlawful sub-delegation and may well have resulted in the Planning Committee not having sufficient information to properly discharge its s 77(1) obligation to identify and assess all reasonably practicable options to improve cyclist safety on Thorndon Quay.
Issue 3: Whether the Judge erred in finding that the Council had complied with the information requirements for consultation under s 82 of the LGA? Held: No.
If the Council had complied with its s 77(1) obligation, which the Court found it did not, s 82A would not have applied to the consultation process the Council undertook in respect of the proposed traffic resolution.
Issue 4: Whether the Judge erred in finding that the Council had met the requirements of s 79 of the LGA? Held: No.
Given the large number of decisions that must be made by local authorities, of varying degrees of significance, the Court did not accept that s 79 necessarily envisages or requires local authorities to adopt a high level of formality when making the required “judgments” under s 79 as to how to best discharge its decision-making obligations. It can be inferred from the process the Planning Committee followed that it made judgments to the effect that the process it followed was appropriate in all the circumstances.
Issue 5: What is the appropriate relief?
The appropriate relief is a declaration that the Council’s decision-making processes did not comply with its obligations under s 77(1) of the LGA. The Court found that it was not appropriate to quash the Decision or direct that the angled parking on Thorndon Quay be restored. Matters have moved on since the Decision was made in 2021, and it appears that the Decision has largely been superseded by subsequent events and decisions that would have required the removal of the angled parking in any event. Further (and importantly), the evidence before the Court from road safety experts is that the road configuration prior to the Decision was unsafe and that the current configuration provides a greater degree of safety for cyclists. Even if the Decision had not been superseded by subsequent events (and therefore required reconsideration in accordance with a proper s 77(1) process), it would not therefore have been in the public interest to order the reinstatement of angled parking on Thorndon Quay pending any further reconsideration of the Decision. Rather, the declaration made, together with the guidance given in the judgment, should ensure that any future decisions made by the Council in relation to the Thorndon Quay/Hutt Rd Project will be made in accordance with a process that complies with the Council’s obligations under s 77(1) of the LGA.