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High Court of New Zealand Decisions |
Last Updated: 5 June 2019
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CIV-2018-485-753
[2019] NZHC 1240 |
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BETWEEN
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ISLAND BAY RESIDENTS’ ASSOCIATION
Applicant
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AND
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WELLINGTON CITY COUNCIL
Respondent
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Hearing:
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20 & 21 May 2019
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Counsel:
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C Anastasiou for Applicant
N M H Whittington and M A Hori Te Pa for Respondent
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Judgment:
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5 June 2019
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JUDGMENT OF CHURCHMAN J
Introduction [1]
Urban cycleways [8]
History of Island Bay cycleway [16]
Nature of proceedings [55]
The basis of the challenge [59]
Breach of Local Government Act consultation obligations [65] Technical or peer review of concept designs [65] Inadequate involvement in determining content of consultation material [73] Inclusion of applicant’s preferred design option [81]
Consultation period too short [98]
Obligation to consult on the “Mayor’s Option” [120]
Preference of majority not reflected [131]
Breach of common law natural justice [135]
Breach of NZBORA [147]
Breach of procedural legitimate expectations [150]
Mandatory relevant considerations [162]
Outcome [179]
ISLAND BAY RESIDENTS’ ASSOCIATION v WELLINGTON CITY COUNCIL [2019] NZHC 1240 [5 June 2019]
Introduction
[1] The Island Bay Residents Association Inc (the Association) was incorporated in October 2015. It was formed to advance the wishes and priorities of Island Bay residents in relation to the development of their suburb.
[2] The only qualification for membership was that members reside in Island Bay. There is no membership application fee or annual subscription. Counsel advised that it had a membership list with some 435 names on it.
[3] Island Bay, as the name implies, is a seaside suburb and is located on Wellington’s south coast. It gets its name from Tapu Te Ranga Island, a short distance off the coast. The area has been inhabited for hundreds of years and in pre-European times, the island and adjacent coast supported Māori Pa and other settlements.
[4] After European settlement, Island Bay developed, in the late 19th century, as a base for fishing boats, many operated by fishermen of Italian descent.
[5] Its growth as a residential suburb dates from the 1920s and it is now home to more than 7,000 residents. It is, by Wellington standards, relatively flat with the main street (The Parade) rising gradually from the coast northwards to the adjoining suburb of Berhampore.
[6] Methods of transport in Island Bay have changed over the years. The development of the suburb for residential purposes owed much to the extension of the Wellington City tramline to it in the early part of the 20th Century.
[7] Many of the inhabitants of Island Bay travel to other suburbs for work, education and social or recreational activities. In terms of public transport options, trams were long ago replaced by trolley buses which have more recently been replaced by diesel buses. Many residents also travel by car. The Parade is the main transport route into and through the suburb.
Urban cycleways
[8] In recent decades, cycling has become more popular in Wellington as both a means of transport and a recreational activity. Cycling is seen as having public health benefits in terms of promoting fitness and reducing obesity, as well as potential environmental benefits in reducing carbon emissions that contribute to consequences such as climate change.
[9] Along with likeminded authorities throughout New Zealand and many parts of the developed world, the Wellington City Council (the Council) has promoted strategies to encourage cycling. The Council has a programme known as the Wellington Urban Cycleways Programme. As at August 2016, its stated aim was:
... to create a sustainable, liveable, attractive city that offers choices about how to travel and an all ages and abilities cycling network.
[10] Over the past decade, the Council’s budget for the implementation of the Urban Cycleways Programme has increased from $65,000 in 2008 to $20 million in 2018.
[11] In furtherance of its aims to create Urban Cycleways, the Council has implemented a number of different cycleway designs in various parts of Wellington.1 The precise designs used depend on a number of variables including the nature of the roadway, the volume and distribution of traffic, the speed of traffic, the width of the road and patterns of actual and anticipated cycle usage.
[12] The major consideration determining the design options for the different types of cycleway is that of safety. If cyclists are to be encouraged to share roadways with vehicles, particularly heavy vehicles such as trucks and buses, cycleway design needs to adequately address the safety hazards that vehicular traffic presents to cyclists, and also the hazards that cyclists present to motorists.
[13] In this regard, the Council’s aim to provide a cycling network suitable for “all ages and abilities” presents particular problems. While fit, experienced and confident
cyclists may be able to negotiate roadways at a similar speed and in a similar manner as cars, so-called vulnerable cyclists (children, the inexperienced, or less able cyclists), in order for their safety to be assured, may need a solution that involves some form of separation from the main road carriageway. Depending on the extent to which such a solution interacts with footpaths or pedestrian crossings, it also has to provide a safe environment for pedestrians as well.
[14] Cycleway solutions can vary from low-cost/low-tech options such as the painting of a cycle image on the roadway along with two chevrons known as “sharrows” indicating that the carriageway is shared by both vehicles and cyclists, to highly engineered and high cost solutions involving the creation of pathways that are physically separated from the carriageway, including options for cycleways located between the footpath kerb and parked cars.
[15] The implementation of such highly engineered cycleway solutions inevitably involves some compromise to the rights that other road users have previously been able to enjoy, particularly in relation to where and how they park their vehicles or access properties adjacent to the roadway, and how fast they can proceed along the roadway or through traffic control mechanisms such as roundabouts.
History of Island Bay cycleway
[16] For a period of some 15 years prior to 2013, Island Bay had a cycleway that could be described as low-cost/low-tech. It consisted of white lines with images of bicycles painted on the carriageway at various points between intersections.
[17] Ms Greco, for the applicant, deposed that it “ran the length of The Parade except for the shopping centre” but Mr Becker, for the respondent, deposed that it ran along the southern half of The Parade from the beach to the Island Bay shops. Both were agreed that it involved cyclists cycling in that part of the carriageway used by vehicles.
[18] The Parade is designated a Principal Road in the roading hierarchy set out in the Wellington City District Plan. Such roads are described as having the function of providing access to arterial roads and motorways, having a dominant through
vehicular movement and carrying major public transport routes. Ms Fraser described it as carrying up to 10,000 vehicles per day at its northern end. She noted that this was more than the 3,000–7,000 per day described in the District Plan for Principal Roads.
[19] In 2013, the Council developed a proposal for a cycleway adjacent to the kerb with the area for carparking previously adjacent to the kerb being moved out onto the carriageway. The Council embarked on a consultation process between July 2013 and April 2014. Ms Greco deposes that only 188 written submissions were received with only 66 of those from residents of Island Bay. The majority of the written submissions favoured the kerb-side proposal.
[20] The Council prepared a kerb-side design and consulted on this with the Island Bay community in mid-2014. Ms Greco deposes that 486 residents of “wider” Island Bay and 243 people outside Island Bay responded. She says 57 per cent of submitters were opposed to the kerb-side design. Mr Dooley (a witness for the Council) deposes that it was in fact 57 per cent of the submitters with Island Bay residential addresses who were opposed to the kerb-side design and that the total percentage of all submitters opposed to the kerb-side design was 45 per cent.
[21] Work on the kerb-side cycleway commenced in September 2015 and was completed in February 2016.
[22] The construction of a kerb-side cycleway was not popular with a number of Island Bay residents and business people. Indeed, almost as soon as construction commenced, the Association was incorporated and began to organise opposition to it. It conducted its own survey of local residents in January 2016 (before the cycleway was operational) and of the approximately 2,000 responses it received, 80 per cent indicated a preference for a “roadside” rather than a kerb-side cycleway.
[23] Public reaction to this cycleway, and others being developed by the Council, prompted the New Zealand Transport Agency (NZTA) to commission a review of the Council’s programme.
[24] The background to this is that the Government had implemented an Urban Cycleways Programme (UCP) providing $100 million of Government funding with the fund being supplemented by money from Local Government. The objective of the programme was to improve urban cycling infrastructure between 2014/2015 and 2017/18. The total combined funding over the three-year period was to be
$333 million.
[25] The Council had agreed to deliver a UCP across specific Wellington locations between 2015-2018 with the total proposed co-investment by Government and the Council being $34.7 million. This was part of a planned total investment by the Council of $101 million in its UCP over 30 years.
[26] NZTA commissioned an independent consultancy, Morrison Low, to review the Council’s UCP, including the Island Bay cycleway.
[27] The 2016 Morrison Low report contained criticisms of a number of aspects of the Council’s Cycling Framework and made some comments specifically relevant to the Island Bay cycleway including:
...
...
[28] The Council had commissioned MWH (an independent engineering consultancy) to undertake a post-construction safety audit on the Island Bay cycleway and that was completed and presented to the Transport and Urban Development Committee (TUDC) on 30 June 2016. That document, and an independent peer review
of it undertaken by Wilkie Consultants, did not find the cycleway, as a whole, to be unsafe but did identify a number of safety concerns and potential solutions to those concerns.
[29] On 30 June 2016, the TUDC passed a resolution which included the statement:
Agree that re-engagement with the Island Bay community commence as soon as practical and be community-led with the detailed engagement approach to be developed by representatives from the Island Bay Residents’ Association, local businesses, Cycle Aware Wellington and interested stakeholders together with council and be ready for presentation to the September 2016 Transport and Urban Development Committee meeting.
[30] By way of implementation of that resolution, a group called “The Syndicate” was set up by the TUDC to facilitate the re-engagement process. That group included two representatives from the Association, two representatives from Cycle Aware Wellington (CAW), and one representative from the Council.
[31] The Syndicate undertook the engagement process by implementing a programme called “Love the Bay”.
[32] The Love the Bay programme was undertaken in the latter part of 2016 and involved:
(a) the establishment of a website which had relevant documentation posted to it;
(b) a “drop-in shop” located in Island Bay where interested parties could come in and view plans and photographs and other material, and talk to Council staff or consultants about the programme; and
(c) a series of workshops.
[33] In March 2017, the Council provided all of the information obtained from the Love the Bay initiative to independent traffic engineering consultants, Tonkin + Taylor Ltd (T+T). They were tasked with preparing a number of options for further
consultation that reflected the community objectives as identified from the Love the Bay programme, and also the Council’s cycling objectives which included:
Provide transport choices by increasing the opportunity for people to ride bikes so as to improve the sustainability, liveability and attractiveness of Wellington.
[34] T+T were requested by the Council to include in their final options one which was based on the status quo (the kerb-side cycleway) and one based on the carriageway cycle lane which had existed prior to the construction of the kerb-side cycleway.
[35] The various designs prepared by T+T were made publicly available at community engagement drop-in sessions. The feedback from such sessions was collated by the Council and a spreadsheet with over 2,400 individual items of community feedback was provided to T+T.
[36] Mr R W Dunn of T+T deposed that their design engineers had read each individual piece of feedback in order to formulate the options to take forward for formal public consultation.
[37] T+T (together with Studio Pacific Architecture) produced a substantial design report in July 2017. It identified four options (Options A-D).
[38] Mr Dunn deposes that although the four options were high level conceptual designs intended to convey the general layout of the road and cycleway, they also contained a high level of engineering and safety assessment. He also refers to
section 4 of the Main Design Report which outlines how the community feedback from the Love the Bay engagement and the MWH road safety audit findings informed the concept design responses.
[39] The Council commenced its formal consultation on Options A-D on 31 July 2017.
[40] On 27 July 2017, Mr Becker (a Council staff member) had emailed the Association, CAW and other external stakeholders with copies of the consultation documents and Council’s media release.
[41] Mr Becker deposes that the Council had decided not to consult on an option identical to the original cycleway because it did not comply with NZTA and engineering safety guidelines, nor to consult on an option identical to the existing cycleway because the 2016 Post-Construction Safety Audit had indicated that safety improvements were required. He deposes that Option A represented a modified version of the original cycleway and Option B reflected the current cycleway with enhancements.
[42] The Council determined that 14 days was an appropriate period for the public to provide written submissions on the options given the significant amount of prior engagement that had occurred.
[43] The Association organised a public meeting on the Options which took place on 31 July 2017. Council officials and engineering consultants attended this meeting. At the meeting, Ms Greco advanced a proposal referred to as “Option E”. That was essentially a reversion to the original cycleway. A vote by show of hands indicated a majority of those present supported Option E. Ms Greco deposes that the councillors present at the meeting committed to include Option E in the consultation process. Mr Becker’s recollection is different. He says that Councillor Calvert stated that she would seek advice from Council officers as to whether Option E could be incorporated as a named option in the formal consultation process that had been opened earlier that day, not that it would definitely be included.
[44] His recollection was that no other councillor or Council officer made any commitment to include Option E in the consultation process. Mr Becker’s recollection is supported by an email from Councillor Calvert to Ms Greco of 1 August 2017, the relevant passages of which say:
Following on from our phone conversation I would just like to confirm that I have sought advice on whether the Island Bay Residents Assn/Business Assn proposed “Option E” could be incorporated as a named option in the Council’s formal consultation process in respect of the Island Bay Cycleway, which opened as at 31 July 2017.
At last night’s public meeting I indicated at the meeting that I would see whether this was possible. I have checked with officers today and confirm the advice from officers is that Council cannot, at this stage of the process, incorporate an additional formal option into the consultation process. However any submitter can provide their comments and or details of an alternative option in their submission.
[45] Council added a Frequently Asked Questions (FAQs) section to the Council website which stated that Option E could not be included as an additional formal option into the consultation process, but that any submitter could provide comments and details of an alternative option in their submission.
[46] Councillor Calvert had also told the meeting of 31 July 2017 that people providing feedback on the proposal were at liberty to suggest another option.
[47] By the conclusion of the formal consultation process, the Council had received 3,763 formal and 94 informal submissions. The majority of the submitters expressed a preference for Option E.
[48] The Council once again referred the feedback material to T+T for analysis.
[49] Mr Becker deposes that on 6 September 2017 he was contacted by a staff member from the Mayor’s Office about a “compromise option” that the Mayor had received feedback on from community members. He engaged T+T to assess this.
[50] Ms Greco and the Association also approached the Council about an alternative proposition and, at their request, Mr Becker and a T+T representative met with a group of eight people (Island Bay residents and business owners) and received a list of
requirements from them. Mr Becker deposes that list was emailed to Councillors Calvert and Eagle on 18 September 2017.
[51] Mr Becker produced a report for the City Strategy Committee (CSC) meeting of 20 September 2017. The CSC had replaced the TUDC.
[52] His report recommended a cycleway design that, in general terms, merged the residential section of Option C with the business section of Option D with refinements. The refinements to the business section of Option D incorporated public feedback around carparking, provision for bus stops and safety of all users.
[53] Mr Becker deposes that, in addition to his report, the councillors were provided with:
(a) the Tonkin+Taylor Report: “The Parade/Island Bay Design Option Refinement, September 2017”;
(b) the Morrison Low Report: “Review of Island Bay Cycleway Re-engagement – August 2017”;
(c) the Research and Evaluation Team Report: “Love the Bay – Delivering on the Cycleway, 2017. Analysis of Submissions”; and
(d) copies of all 3,763 formal and 94 informal submissions (both electronic and hardcopy).
Patrick Morgan of Cycling Action Network and Eleanor Meechan of CAW addressed the meeting, as did Ms Greco.
[54] The CSC resolved to request officers, “subject to detailed design and completion of safety audit”, proceed with a cycleway solution that includes what Mr Becker deposes was a final design “not materially different to the cycleway design option [he] recommended to Council.” He further deposes, “All elements of the amended cycleway design were substantially the same as elements of the design
options contained in one or more of Options A-D, and had been consulted on.” It is this decision that is challenged in these proceedings.
Nature of proceedings
[55] These proceedings involve a claim for judicial review. Notwithstanding the volume of material presented to the Court that related to the merits of the various different cycleway options and issues such as safety and inconvenience arising from those options, these proceedings do not involve any form of merits appeal from the Council’s decision and it is no part of the Court’s function to determine whether the option decided upon by the Council was the best, the most popular, or the safest option.
[56] Territorial local authorities are granted powers under the Local Government Act 2002 (the LGA) and many other statutes. When exercising the powers granted by a statute, a Council is obliged not to misuse those powers. If a Council’s powers have been misused, this may result in a decision being declared ultra vires and the Court has a discretion to set it aside.
[57] The three main grounds upon which a Court might declare a decision to be invalid are:
(a) illegality (the Council failed to understand the relevant law);
(b) irrationality (the decision is so unreasonable or irrational that no sensible Council could have made it); and
(c) procedural impropriety (where the Council has failed to follow the rules of natural justice or other procedural requirements that they were obliged to follow).
[58] Even though there has been an increasing willingness of courts to interfere with decisions made by Councils since the concept of “unreasonableness” was articulated in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation,
the Court’s rights on a review stop short of a merits appeal.2 This was explained by Professor Palmer in the following way:3
Acceptance that the courts and the legislation do not provide for an open right to intervene or review a decision of a local authority reflects the constitutional principles of government and the separation of powers. The courts may intervene only on the grounds of unlawful conduct, or conduct that is so unreasonable or irrational that Parliament would not have intended to authorise the activity or decision, or serious procedural error. Otherwise, in the words of one judge: “If the citizens at large are not satisfied with the council’s performance, in the time honoured phrase, they have the option, “to throw the rascals out”, in due course”.
The basis of the challenge
[59] The Association challenges the decision of the CSC of 20 September 2017 on the basis that the Council made mistakes/errors of law and it failed to act in accordance with natural justice.
[60] The specific provisions of the LGA which the Association alleges the Council breached were:
(a) section 77(1) – the relevant parts of which require a Council, in the course of a decision-making process, to seek to identify all reasonably practical options for the achievement of the objective of a decision and to assess the options in terms of their advantages and disadvantages;
(b) section 78(1) – which requires a Council, in the course of its decision- making process in relation to a matter, to give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter; and
(c) section 82(1) – which details what the concept of “consultation” under the LGA means.
2 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (CA).
[61] The first amended statement of claim lists seven separate reasons which are said to amount to breaches of the three provisions of the LGA. The statement of claim also alleges that the same reasons mean that the Council breached the common law concept of natural justice.
[62] It makes a similar claim alleging a breach of s 27(1) of the New Zealand Bill of Rights Act (NZBORA). Section 27(1) of NZBORA provides that every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
[63] The Association advances a separate claim that is referred to as “Breach of Procedural Legitimate Expectations”. It is claimed that the Association had a legitimate expectation that “[t]he original designs would be amongst the options that the Council would specifically consult the community on” and “[t]he Applicant’s preferred design option (in terms that became known as Option E) would be amongst the options that the Council would specifically consult the community on.”
[64] A further separate claim is that the decision was unlawful because the Council failed to have “meaningful regard” to mandatory relevant considerations, four of which were specific traffic safety matters. A fifth consideration said to have been ignored was the preference of the majority of persons who made submissions during the consultation process which began on 31 July 2017. Each of these claims need to be addressed separately.
Breach of Local Government Act consultation obligations
Technical or peer review of concept designs
[65] The first error of law pleaded by the Association is:
The Council’s decision to begin consultation on 31 July 2017 meant that the concept designs that it consulted on were unable to undergo any technical or peer review by the Council or independent contractors prior to being consulted on.
[66] There is no express obligation in ss 77(1), 78(1) or 82 that requires a concept design to undergo technical or peer review prior to being consulted upon. The obligation on the Council is to seek to identify all reasonably practical options for the achievement of the objectives of a decision and to assess the disadvantages and advantages of these options, along with giving consideration to the views and preferences of persons likely to be affected.
[67] The submission for the Council was that it was never intended that the options released for formal consultation on 31 July 2017 would undergo technical or peer review prior to that consultation. Mr Dunn, a senior Transportation Engineer at T+T, and Mr Becker deposed that technical and peer reviews would be undertaken on the preferred design chosen by the Council.
[68] The resolution passed by the Council on 20 September 2017 confirmed that the option chosen by the Council was “subject to detailed design and completion of safety audit”.
[69] It is also clear from the evidence of Mr Dunn (referred to at [38] above) that the four options that the Council set out in its consultation document had already been subject to significant engineering and safety assessment.
[70] The Council submits that the provisions of the Local Government Act 1974, which provide that the Council is the road controlling authority, are not prescriptive about the process by which road layout changes are made and notes that the NZTA guidelines are consistent with safety audits occurring at the detailed design phase.
[71] Under s 82(1)(c) of the LGA, the obligation is to give the public clear information about the “purpose of the consultation and the scope of the decisions to be taken”. The purpose of the consultation was to receive submissions “on the designs by either selecting your preferred design OR ranking one or more of the designs in order of your preference”. It was no purpose of the consultation that the submitters would make submissions on technical engineering or safety matters. However, if submitters were minded to do so, the Design Report by T+T was publicly available on the Council’s website for them to consult.
[72] The designs formally consulted upon by the Council had been prepared by an independent and qualified expert (T+T) which, as noted in [33] above, had been provided with all of the information obtained from the Love the Bay initiative. There was no breach of the LGA in the Council’s decision to defer detailed engineering and safety issues until after a preferred option had been determined.
Inadequate involvement in determining content of consultation material
[73] The second ground advanced by the Association is that:
The applicant was not appropriately involved in determining the content of the Council consultation material, including the design options that would be included in the consultation paper and the timeframe that would be set for consultation.
[74] Mr Anastasiou, for the Association, acknowledges that the Court of Appeal decision in WCC v Minotaur Custodians held that s 78 LGA did not of itself generate an obligation to adopt any particular consultation process or procedure, but submits that a consultation process adopted must be a “meaningful one”.4
[75] Implicit in the Association’s submission is the proposition that meaningful consultation included an obligation on the Council to involve the Association in determining the content of the consultation material, including the design options and consultation timeframe. However, such a submission is contrary to the conclusions of the Court of Appeal in WCC v Minotaur and the High Court decision in Save Chamberlain Park Inc v Auckland Council.5 These cases make clear that the Council has a wide discretion as to how to conduct the process of consultation.
[76] The community engagement process that preceded the formal consultation on the options had begun many months prior to 31 July 2017. The Association had been fully, and appropriately, involved in the Love the Bay consultation and information process. All of the information gained from that process had been provided to T+T and considered when coming up with the options.
4 WCC v Minotaur Custodians [2017] NZCA 302, [2017] 3 NZLR 464 at [36].
5 Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462.
[77] The ascertaining of the community’s aspirations or preferences did not oblige the Council to involve the Association (or CAW, or any other community interest group) in designing the options for consultation. There is nothing in s 82(1) LGA which goes as far as conferring a substantive right on one participant in a community consultation exercise to be able to formulate specific options.
[78] The proposition advanced by the Association in this regard is similar to one advanced by a party engaged in a consultation process in the case of Northlake Investments Ltd v Queenstown Lakes District Council.6 In rejecting the submission that the party was able to stop a consultation process to enable it to have input into the Council’s consultation material, the Court said:7
That approach overlooks the fact that it is the Council itself which is the decision-maker, not the members of the public. Northlake is in a position, as with all members of the public, to make its own submissions and to challenge the financial assumptions and the merits of the various options.
[79] The same principles apply to the claim that the Association had a right to be involved in setting the timeframe for consultation.
[80] While Mr Anastasiou is correct that the consultation must be meaningful, it is for the Council, not any of the submitters, to determine what the length of any particular component of the consultation process should be. That is a different question to the one of whether or not the formal 14-day consultation period which commenced on 31 July 2017 was too short. That issue is dealt with separately below.
Inclusion of applicant’s preferred design option
[81] The Association claims that:
The consultation material disseminated by the Council, including the consultation paper, should have included the original designs and the Applicant’s preferred design option (in terms that became known as Option E), but it did not.
[82] This submission engages a number of the LGA statutory obligations, including:
6 Northlake Investments Ltd v Queenstown Lakes District Council [2014] NZHC 2593.
7 At [32].
(a) section 77(1) – the obligation to identify all reasonably practicable options for the achievement of the objective of a decision;
(b) section 78(1) – the obligation to give consideration to the views and preferences of persons likely to be affected; and
(c) section 82(1) – the obligation to provide those affected with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of the people affected.
[83] As set out in [34] above, T+T were specifically instructed to include an option for consultation which represented the original cycleway. It did that with Option A. The consultation paper explains why it was not possible to include, as Option A, an option which was identical to the original cycleway. The relevant passage in the consultation paper said:
Prior to the construction of the Island Bay Cycleway, The Parade south of Medway Street had kerbside parking, a roadside cycle lane, and traffic lanes separated by a central flush median. Option A proposes a design that, as close as safely possible, reflects this. Changes have been made to reflect the requirements of the 2016 post-construction safety audit and peer review, and newer NZTA and engineering safety guidelines. It is these requirements that preclude a return to the exact original design. Changes also extend the cycle treatment along the length north of Medway Street to the Dee Street roundabout.
[84] The FAQs page on the Council’s website also explained that the original design no longer met safety and best practice guidelines. The original cycleway also did not extend the full length of the Parade, and Option A proposed to “extend the cycle treatment” north of Medway Street to the northern end of The Parade at Dee Street.
[85] The Council submitted that it was entitled to decide that the original cycleway option, without modification, was not a viable option and that it needed the enhancements set out in Option A in order to comply with current NZTA requirements and engineering and safety guidelines.
[86] In this regard, the Council was entitled to rely on the expert advice it received from T+T. In terms of s 77(1)(a) LGA, it cannot be said that the original cycleway
design, without the enhancements set out in Option A, was a “reasonably practicable option” for achieving the Council’s objectives in respect of a cycleway.
[87] In relation to the claim that the Council had an obligation to include the Association’s preferred design option (Option E) in their material that went out for consultation, the design that became known as Option E was put forward at the meeting on 31 July 2017.
[88] The formal consultation had already commenced that day. As detailed above, there is nothing in the LGA that entitles a submitter to be able to dictate to a Council the substantive content of options put out for consultation.
[89] In any event, insofar as Option E is concerned, once the Council became aware that the Association wanted to have the opportunity for their members to specify it as their preferred option, it took steps to provide that opportunity.
[90] In the FAQs on its website, it explained why Option E was not formally being consulted on, but also explained that submitters could nominate Option E as their preference. It is clear that the explanation was effective in communicating its message by virtue of the fact that the majority of the submitters indicated that it was their preference.
[91] The Association claimed that:
The Council breached the commitment given to the Applicant at the public meeting on 31 July 2017 that Option E would be included in Council disseminated consultation material.
[92] As detailed at [44] above, the objective evidence in the form of the email from Councillor Calvert to Ms Greco is inconsistent with the Association’s claim that councillors present at the meeting committed to include Option E in the consultation process.
[93] In judicial review proceedings, without cross-examination on affidavit evidence, it is often difficult to resolve disputed questions of fact. However, in this
instance, the Court is entitled to have regard to the email from Councillor Calvert to Ms Greco of 1 August 2017. It is also relevant that, by the time Ms Greco says the Council had given a commitment to include Option E in the Council disseminated consultation material, the hardcopy form with the Options A-D on it had already been printed and the process of consultation commenced.
[94] A transcript of the 31 July 2017 meeting has two relevant passages. In relation to Option E, it records Councillor Calvert as saying:
If you’re going to fill the form in now we don’t have it on the list – so all I’m just trying to do is help to make sure that it is as clear as possible on the form. Now on the submission form under section 2 there is a space for you to write something in something like that – so we will go away and tomorrow and see if we can get it up online – we won’t be able to do it on the forms – because the forms have already been printed – but we will look at doing that – but we do need some information obviously from the Residents Association – but if you are going to fill in your form tonight and you want to put in that information now – I suggest that you can call it Option E or Option Goal – or whatever you want to call it...
[95] Shortly thereafter, the transcript records Ms Greco as saying to the meeting:
Okay they are going to try to get it on the online forms – as quickly as possible
– they can’t get it onto the written forms – so if you’re going to do it by written form – then you’ll need to write it on.
[96] None of this is consistent with the “commitment” pleaded in the amended statement of claim.
[97] Even if Councillor Calvert had made the sort of “commitment” claimed, the problem would arise that the resolution as to the form of consultation was made by the CSC. An individual councillor cannot lawfully vary or rescind such a decision.
[98] The fifth breach of the provisions of the LGA alleged by the Association is, “The 14-day public consultation period was too short”. There is no specific time limit stipulated for consultation in ss 77, 78 or 82 of the LGA. Clause 12 of the Council’s “Consolidated Bylaws 2008, Part 7: Traffic”, which deals with the consultation period for traffic resolutions, stipulates that a proposed resolution shall be on the Council’s website at least 14 days before the Council considers it.
[99] In support of its claim that the 14-day public consultation period was too short, the Association focuses on the formal consultation period whereas the Council points to the fact that this formal consultation period was the culmination of a community engagement process which had begun some 14 months previously. Whether a particular consultation process in relation to any Council’s decision is sufficient will depend upon the facts of each case. An important question will be whether or not the principles of consultation set out in s 82 LGA have been complied with.
[100] In measuring this process against the Council’s obligations under s 82(1) LGA, it is not possible to ignore the processes that the Council had engaged in over the prior 14 months. That is because those processes are directly relevant to:
(a) whether or not the Council has provided persons who may be affected by, or have an interest in, the decision with reasonable access to relevant information;
(b) whether such persons have been encouraged to present their views to the local authority;
(c) whether such persons have been given clear information concerning the purpose of the consultation and the scope of the decisions to be taken; and
(d) whether such persons have been provided with a reasonable opportunity to present their views and whether such views have been received by the local authority with an open mind and given due consideration.
[101] As submitted by Mr Anastasiou, the principles in s 82(1) LGA are, in substance, “performance standards” against which the Council’s consultation is to be measured.8
8 See WCC v Minotaur Custodians, above n 4, at [39].
[102] In support of the submission that the 14 days allocated for the formal consultation was not “meaningful”, Mr Anastasiou relied on a decision of the Privy Council where he said it had been held that an 11-day consultation period in relation to a Government decision to expand the boundaries of Port Louis (the capital of Mauritius) was insufficient.9
[103] What actually occurred in that case was that the Governor had written to the town clerk of Port Louis on 2 May 1963 advising of a proposal to alter the existing boundaries of the town and asked for the local authority’s response by 13 May. As it happened, the time for a response was extended until July.
[104] The governing legislation did not provide any formalities in relation to consultation. The Privy Council said:10
The local authority must be told what alterations of boundaries are proposed. They must be given a reasonable opportunity to state their views. ... The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed: they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties: they must be free to say what they think.
[105] Later, the Privy Council observed:11
The time within which the views were originally requested does seem to their Lordships to have been remarkably short and particularly so in the absence of stated reasons which pointed to a measure of urgency. Even, however, if this was so it does not alter the fact that the proposal itself was clearly stated and would at once be readily understood. ... It might have been unreasonable to refuse a request on the part of the Municipal Council, if it had been made, for a longer period of time within which to express their views. There was however no such request.
[106] The Privy Council held that there had been no breach of the consultation obligation.
[107] Analysing the current situation against the criteria set out by the Privy Council, the parties affected by the proposal did know what was proposed and they were given
9 Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111.
10 At p 1124D.
11 At p 1131D.
an opportunity to express their views and to point to problems and difficulties. They were free to say what they thought.
[108] The ultimate measure of whether or not the consultation was meaningful must be what the outcome actually was. We know that the Council received 3,763 formal and 94 informal submissions, and that the majority of submitters expressed a preference for Option E.
[109] We know that the number of people who made submissions was vastly higher than the number who had submitted on the original cycleway proposal in 2015.
[110] In terms of the total population of Island Bay,12 it is clear that a very high percentage of residents actually expressed their preference and, notwithstanding the criticisms of the options on the voting form, the majority were clear that they wanted Option E.
[111] In his oral submissions, Mr Anastasiou made the point that the total number of submissions was very large “by local authority standards, and even by central government standards”. Mr Farrar, a polling expert for the Association, also expressed the view that turnout was high compared to the norm.
[112] The inevitable conclusion to be drawn is that the engagement process that the Council had embarked upon, over some 14 months prior to 31 July 2017, had been effective in providing information about what was proposed and why, and facilitated a very large number of Island Bay residents in being able to express their preferences to the Council. In those circumstances, it cannot be said that the consultation process was “perfunctory” or “a mere formality”. Neither can there be any suggestion that Island Bay residents were not free to say what they thought.
[113] When the 14-day formal consultation period is looked at in the context of both what went on over the prior 14-month period, and the actual outcome of the consultation process itself, it cannot be said to have been unreasonably short.
[114] In relation to the obligation in s 82(1)(e), that the views presented to the Council were to be received by the Council with an open mind and be given due consideration, the Council referred the information by way of feedback to T+T for analysis. That analysis produced the T+T report, “The Parade/Island Bay Design Option Refinement, September 2017”. That report, along with the other analytical material set out in [53] above, along with electronic and hardcopies of all 3,763 formal and 94 informal submissions, were provided to and considered by the CSC.
[115] It is important to remember that the obligation in s 82(1)(e) is to give the views expressed by those who will, or may be, affected by a proposed decision “due consideration”.
[116] The LGA does not impose on the Council an obligation to accede to the views of a majority of a community or the majority of any part of a community. The case advanced for the Association was permeated with the idea that there was an express or implied obligation on the Council to comply with the preferences of the majority of the Island Bay community.
[117] In relation to the formal consultation exercise, Mr Anastasiou said in his oral submissions:
... well if you’re not going to take, if a territorial authority is not going to take notice of the majority view, what is the point of going through the exercise itself?
[118] Such a submission is misguided. The formal consultation process commenced on 31 July 2017 was not a referendum. Provided the preferences expressed by the participants were given due consideration, the Council was entitled to have regard to other factors. Those other factors included the expert engineering advice it had received as to the viability of reversion to the original cycleway (effectively Option E), as well as to its overall aims in relation to the creation of a network of urban cycleways for Wellington city.
[119] In his oral submissions, Mr Anastasiou accepted that the Council was not under an absolute obligation to adopt the preference expressed by the majority of the submitters. He acknowledged that he could not use the word “priority” or even
“override” in describing the weight that should be given to the submitters’ preference. Instead, he said that the Council was obliged to treat the views of the residents as significant. To the extent that having significant regard to the residents’ preferences is another way of saying their preferences must be given due consideration, I accept that submission, but ultimately, they remained only one factor among a number that the Council was entitled to take into account.
Obligation to consult on the “Mayor’s Option”
[120] The statement of claim pleads:
The Mayor’s Option should have been specifically consulted on, given the timing and circumstances of its formulation and the material differences between it and the design options that the community had been specifically consulted on.
[121] At the heart of this submission is the assumption that the cycleway proposal that was ultimately adopted (the “Mayor’s Option”) was materially different from anything that had been consulted on.
[122] Mr Anastasiou acknowledged that having gone through a consultation process and taken into account the feedback from such a process, the entity undertaking consultation may modify its original proposal. He relied upon a quote from the Court of Appeal decision in McInnes v Minister of Transport, where the Court said:13
If, as a result of the submission and consultation process, the draft is so transformed that what the Minister is then considering is really a completely new rule, the Minister would have to start again. This will sometimes be a difficult question of fact and degree ...
[123] Mr Anastasiou then referred to a number of cases where the Courts had found, on the facts, that there had been such a significant change to the proposal that had been consulted upon that a re-consultation was required.
[124] Attached as Schedule 3 to Mr Anastasiou’s written submissions was a document headed, “Illustrative particulars of material differences between Mayor’s Option and Options A-D”, which set out a list of 15 differences.
13 McInnes v Minister of Transport [2001] NZCA 389; [2001] 3 NZLR 11 at [16].
[125] Mr Whittington, counsel for the Council, produced an annotated version of that Schedule 3 which explained the origin of each of the 15 differences. His summary demonstrates that eight of the changes were specifically to incorporate aspects of Option E; four were within the range of specifications given in Options A-D; three were not different because they were provided in the July 2017 design report; and one was new.
[126] The option that was new related to the use of “rumble strips on the cycleway and a speed limit for cyclists of 20 km per hour or less”. It was submitted that, in measuring the materiality of this change as against the purpose and scope of the consultation, this minor change to a detail of traffic management was “of no moment”.
[127] Relying on the approach taken by the Courts in cases such as Nelson Gambling Task Force Inc v Nelson City Council, McInnes v Minister of Transport and New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries,14 he submitted that there was no obligation to consult further where work undertaken by the decision-maker, subsequent to a consultation, did not involve a “substantially different approach” or “introduce substantially new data or other material”.15
[128] Mr Whittington referred to Mr Becker’s evidence that the design ultimately adopted was a hybrid of Options C and D.
[129] I accept the analysis undertaken by Mr Whittington of the 15 changes set out in Schedule 3. Given that the majority of submitters had expressed a preference for Option E, those changes which were made to incorporate components of Option E clearly arose out of the consultation. Likewise, to the extent that the ultimate option chosen was a hybrid of Options C and D, it arose out of the proposal that had been consulted upon.
14 Nelson Gambling Task Force Inc v Nelson City Council HC Nelson CIV-2010-442-368, 7 September 2011; McInnes v Minister of Transport above n 12, and New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries [2013] NZSC 154, [2014] 1 NZLR 477.
15 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries, above n 13, at [186].
[130] The provisions of the new proposal relating to rumble strips and a speed limit do not so materially alter the purpose and scope of the consultation as to result in such a materially different proposal that it was required to be re-consulted upon.
Preference of majority not reflected
[131] The seventh alleged breach of the LGA was expressed as being:
The decision did not reflect the preference of the majority of persons who made submissions in the consultation process which began on 31 July 2017 where this majority expressed a preference for a roadside cycleway which reverted to the original design or for Option E.
[132] I have already explained why nothing in the LGA binds the Council to act in accordance with the preference expressed by a majority of submitters. I will not repeat those comments.
[133] I also note that, at the time of the formal consultation, the Council made it clear that what was being undertaken was not a vote or a referendum. In the FAQs on the Council’s website, the following information appeared:
Will the chosen option be determined by how many vote for it?
No. This consultation is to help the Council understand the public’s views on the proposed design options. This is why we have asked submitters to either select their preferred option or rank all of the options so the Council can get a more complete picture of public opinion. Councillors will consider the consultation feedback alongside previous community engagement, NZTA best practice guidelines, engineering guidance and council strategies when they make their decision.
[134] The weight accorded the preference expressed by the majority of the Island Bay submitters is a matter for the Council and, provided the requirements of consultation as set out in s 82(1) had been complied with (as I have found they have), it is not open to the Court in judicial review proceedings, to interfere in this weighting.
Breach of common law natural justice
[135] The Association relies on the seven factual allegations that were alleged to be breaches of the LGA as separately constituting a breach of the common law natural justice obligation.
[136] The Association submits that there is an extensive common law duty to consult which sits alongside and informs the statutory consultation provisions in the LGA. The Association relies on decisions such as Karaka Point Environs Residents Inc v Marlborough District Council16 and Fraser v State Services Commission17 as authority for the proposition that the Courts will supplement a statutory consultation procedure where it is warranted and where the express provision is insufficient to achieve justice.
[137] I accept that there is a common law obligation to consult. The real question is whether or not compliance with the consultation obligations in the LGA was insufficient to achieve justice so that the Court needs to consider the scope of the common law obligation.
[138] Mr Anastasiou submitted that the common law principles require the consultation and decision-making process to be fair and transparent.
[139] The Karaka Point case involved an allegation that a Council had shifted the boundaries of a rating zone and had failed to consult or adequately articulate the basis upon which the decision had been made.
[140] The Court stated that formal compliance with the obligations set out in s 82(1) LGA did not always, or necessarily, discharge the Council’s consultation obligations, although the ultimate ground upon which the decision was made was not breach of the common law obligations to consult but the fact that the Council had never coherently articulated the reasons for the proposed change.
[141] After considering the consultation requirements in the LGA and in the Council’s Long-Term Plan, the Court concluded:18
Against that background I consider there to be a breach of the first of the consultation obligations contained in s 82(1) of the Act, namely the requirement to provide reasonable access to relevant material in a manner that is appropriate to the needs of the ratepayer. ... Put another way, the Council could never decide to exercise its discretion [in relation to consultation] by
17 Fraser v State Services Commission [1984] 1 NZLR 116.
18 Karaka Point Environs Residents Inc v Marlborough District Council, above n 16, at [78].
adopting a process that withheld from ratepayers the true reasons underlying a decision.
[142] When assessing whether or not the consultation process was “fair and transparent”, regard must be had to the whole of the consultation process not just the 14-day formal consultation period that the Association invited the Court to focus on. Unlike the Karaka Point case, it cannot be said that there was a failure to provide essential information.
[143] The Love the Bay process had remedied the issues around engagement that had been identified in the original Morrison Low report. Given the sheer number of responses to the formal consultation, it is clear that the attempts to engage the Island Bay community were effective in that a large number of residents felt able to involve themselves in the consultation process and express their preferences.
[144] In support of a submission that the consultation process was unfair, Mr Anastasiou refers to the fact that, throughout the consultation process, CAW met regularly with Council officers regarding cycling matters without the Association being present. However, it was acknowledged by Mr Anastasiou that there was no evidence before the Court as to what might have been discussed at those meetings, and also that the Council was engaging with CAW in relation to a number of other cycleways throughout Wellington.
[145] In those circumstances, it is unsurprising that Council officers might meet with CAW on a regular basis to discuss such matters. However, there is nothing inherently unfair about a Council meeting individually with submitters or interested parties. As Mr Becker deposed, Ms Greco, herself, initiated the meeting involving eight residents and business people with Council staff following the consultation process.
[146] The Association has not been able to identify any way in which it could be said that the common law obligations of consultation were breached.
Breach of NZBORA
[147] The statement of claim pleads:
The Decision is unlawful because the Council’s processes breached s 27(1) of NZBORA, for one or more of the reasons set out in paragraphs 41.1 to 41.7 above.
[148] There has been no argument advanced that the provisions of the LGA Part 6, Subpart 1 are inconsistent with s 27(1) of NZBORA.
[149] Because the specific allegations of breach of NZBORA are exactly the same as the breaches alleged in relation to the LGA, given the findings made in relation to the LGA breaches, it cannot succeed.
Breach of procedural legitimate expectations
[150] The statement of claim pleads:
The Decision is unlawful because the Council’s processes breached the Applicant’s procedural legitimate expectations that:
44.1 The original designs would be amongst the options that the Council would specifically consult the community on; and
44.2 The Applicant’s preferred design option (in terms that became known as Option E) would be amongst the options that the Council would specifically consult the community on.
[151] There is no doubt that procedural legitimate expectations can go beyond legally enforceable rights and may arise from implied promises.19
[152] The Association’s case in this regard rests on the claim that clear, express or implied expectations were given to it as to a process that would be followed. There is considerable overlap between this pleading and the claim that the consultation requirements of the LGA had been breached in relation to what was said to have been a commitment given to the applicant at the public meeting on 31 July 2017 that Option E would be included in the Council disseminated consultation material.
19 See Green v Racing Integrity Unit Limited [2014] NZCA 133, [2014] NZAR 623 at [13]- [14]. The CA confirmed that there are three requirements for a successful legitimate expectation claim: a promise or commitment; legitimate or reasonable reliance on the promise or commitment; and the availability of an appropriate remedy.
[153] Given the findings of fact I have made in relation to that claim, any suggestion that there has been a breach of procedural legitimate expectations in that regard is untenable.
[154] The other aspect of this claim is that “[t]he original designs would be amongst the options that the Council would specifically consult the community on”.
[155] In support of this proposition, Mr Anastasiou relied particularly on a resolution passed by the TUDC at its 30 June 2016 meeting which said:
Agree that any consultation regarding changes to the cycle way in Island Bay take as long as necessary to get a suitable outcome and include a full range of options, including the status quo and original designs.
[156] It is submitted that this resolution creates an enforceable legitimate expectation that meant the Council was bound to put up as options for consultation options that were identical to the status quo and the original cycleway, irrespective of the identified safety issues, and whether or not such options were ever going to be practically achievable given their non-compliance with NZTA or other regulatory guidelines.
[157] The Council’s answer to this proposition is that Option A was as near as practicably possible to the original cycleway design and that it would have been irresponsible to put up for consultation an unmodified version of the original design knowing that it could not be implemented because it did not comply with NZTA or other guidelines.
[158] The Council makes a similar argument in relation to the status quo (kerb-side cycleway). Their argument was that they could not ignore the safety concerns that had been identified with the status quo, and that they were obliged to include for consultation a version of the status quo that was modified to have regard to those concerns.
[159] Also relevant here is the obligation in s 77(1)(a) LGA to identify all “reasonably practicable outcomes”. Neither the status quo nor the original cycleway could be said to be reasonably practicable options given the safety concerns and issues of non-compliance that had been identified with them.
[160] In these circumstances, I am satisfied that the options that were consulted upon were, in substance, options which represented the “status quo and original designs”, subject to modifications to assist them to meet the “reasonably practicable” threshold.
[161] There is nothing in the resolution of 30 June 2016 that created an enforceable legitimate expectation that the status quo or original designs had to be consulted upon in precisely their original form, notwithstanding that neither, in that form, met the test of being reasonably practicable. Neither are the second or third limbs of the test for a successful claim of legitimate expectation met. There was no legitimate reliance to the Association’s detriment and there is no suitable remedy. No Court is going to direct the Council to go back and consult on options which cannot be implemented because of issues to do with safety or regulatory requirements.
Mandatory relevant considerations
[162] The statement of claim pleads:
The Decision is unlawful because the Council failed to have meaningful regard to the following mandatory relevant considerations:
45.1 The treatment of intersections between The Parade and other streets;
45.2 The impact on driveways from private properties onto The Parade;
45.3 The safety of pedestrians; and
45.4 The adverse effects of a constrained carriageway on the movement of buses along The Parade;
45.5 The preference of the majority of persons who made submissions in the consultation process which began on 31 July 2017 where this majority expressed a preference for a roadside cycleway which reverted to the original design or for Option E.
[163] The Association does not submit that the Council had no regard to any of these considerations but that they did not have “meaningful” regard. Essentially, that is an argument that they did not give sufficient weight to any of them.
[164] Inviting the Court, on a judicial review application, to assess the weight that should be accorded to the variety of factors that a decision-maker is required to have
regard to, is effectively inviting the Court to substitute its own decision on the merits, which is something it is not permitted to do.
[165] Addressing, firstly, the four specific traffic engineering issues which is alleged the Council failed to have “meaningful regard to”, none of these matters are expressly or impliedly identified in the LGA as being mandatory requirements. The concept of “mandatory relevant consideration” was considered by the Court of Appeal in Creedenz Inc v Governor-General, where Cooke J stated:20
[I]t 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.
[166] Essentially the Association’s submission is that the Council did not pay sufficient regard to traffic engineering matters relating to the safety of road users at intersections, driveways, footpaths and on the carriageway itself relating to buses.
[167] It is clear that the Council engaged T+T, who are specialist engineers, to prepare a design report which addressed traffic safety issues. T+T’s design report of July 2017 (available at the time of the formal consultation) addressed a range of safety issues specifically in the context of the NZTA’s Cycle Network Guidance, The Austroads Guide to Traffic Management, Part 4: Network Management, and The Cycling Aspects of Austroads Guides document.
[168] The T+T report also outlines specific design elements that it had incorporated into Options A-D in order to actively respond to safety issues such as driveways and intersections.
[169] T+T’s design report of September 2017, which accompanied its recommendation on a cycleway design, also explicitly addressed design and safety issues of the sort the Association says the Council did not have meaningful regard to.
20 Creedenz Inc v Governor-General [1981] 1 NZLR 172 at 183.
[170] Given that the Council sought and obtained this type of technical advice on safety issues and had it available to them, it cannot be said that they failed to have meaningful regard to it.
[171] It is also to be noted that the decision on which cycleway option to pursue was specifically subject to further detailed design and safety audits. As at the present date, it is not possible to anticipate the technical changes that might be required as a result of that process. But, technical engineering matters such as the treatment of intersections are not matters on which the Council would be expected to consult. It is difficult to see how the residents of Island Bay (other than the few that might happen to be specialist traffic engineers) might be able to make any meaningful contribution on matters of such technical detail.
[172] The important thing that consultation was required on was the broad concept.
[173] The fifth mandatory relevant consideration which it is said the Council failed to have meaningful regard to was expressed as being:
The preference of the majority of persons who made submissions in the consultation process which began on 31 July 2017 where this majority expressed a preference for a roadside cycleway which reverted to the original design or for Option E.
[174] This is another way of restating the seventh of the alleged breaches of the provisions of the LGA.
[175] As explained above, the process of consultation was not the equivalent of a referendum that the Council represented would be binding on it. It said that clearly in the FAQs available during the period of formal consultation.
[176] At the end, this argument really comes down to one of weight. The members of the Association clearly feel that the Council should have given more weight to their clear preference for a roadside cycleway. There is no doubt, in terms of s 78(1) LGA, that a Council must give consideration to the views and preferences of people likely to be affected by a decision it makes.
[177] It is also clear that the Council did have regard to those views, even to the extent of incorporating aspects of the feedback received during the consultation process into what became the final preferred option.
[178] Given that there is clear evidence that the Council did consider the preferences of those who participated in the consultation process, and clearly weighed those preferences along with a range of other factors, there is no basis for this Court, on a judicial review application, to interfere with that assessment process.
Outcome
[179] Accordingly, the Court having found that the consultation process adopted by the Council complied with its statutory and common law obligations, the application for judicial review is dismissed.
[180] I invite the parties to settle costs by agreement but, failing agreement, the respondent is to file a memorandum of no more than 10 pages in length within 14 days from the date of this decision, with the respondent having 14 days to file a similar length memorandum in response.
Churchman J
Solicitors:
Meredith Connell. Wellington for Respondent C Anastasiou, Wellington for Applicant
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URL: http://www.nzlii.org/nz/cases/NZHC/2019/1240.html