Appeal from High Court judgment dismissing judicial review challenge to Council decision over Thorndon Quay parking – Local Government Act 2002, ss 76, 77, 78, 79, 82A – proper interpretation of s 76 – did the council discharge its s 77(1) obligation to identify and assess all reasonably practicable alternatives for the achievement of cyclist safety? – did s 82A apply to this consultation process? – what relief is appropriate?

Thorndon Quay Collective Incorporated v Wellington City Council [2024] NZCA 316

In June 2021, following a public consultation process, the Wellington City Council (through its delegate planning committee) decided to change the parking on Thorndon Quay from mainly angled parking to entirely parallel parking. The aim was to improve cyclist safety.

The change significantly reduced the number of car parks available in the key business areas of Thorndon Quay. Several businesses, through the Thorndon Quay Collective Incorporated (TQC), objected to the change.

TQC had made a submission as part of the consultation process and presented in person at a public meeting of the planning committee.

It had put forward five possible alternatives to the council’s parallel parking proposal, including:

• repainting the angled parks on a relaxed angle, to improve the line-of-sight for exiting drivers;
• reducing the speed limit on Thorndon Quay, to reduce the speed at which cars and cyclists interact;
• installing mirrors in low visibility areas, to ensure exiting drivers could see oncoming cyclists;
• enhancing the cycle corridor painting, to make it more obvious that space is intended for cyclist use; and
• introducing a northbound clearway between 4.30pm and 6pm, to prevent conflict between vehicles and cyclists during the time of greatest cycle use.

The Council’s Manager – Transport and Infrastructure prepared a report for the committee, recommending the change to parallel parking.

The report did not address alternative options to address cyclist safety issues, including those proposed by TQC.

The manager attended the committee’s meeting on 24 June 2021, answered questions about some of the other options and briefly explained why they had been rejected.

The committee then passed a resolution to convert the angled parking on Thorndon Quay to parallel parking. The parking changes were implemented in September 2021.

Part 6 of the Local Government Act 2002 (LGA) sets out the general statutory obligations of local authorities in relation to their decision-making processes.

This includes s 77(1) which requires local authorities to, during the decision-making process, seek to identify all reasonably practicable options to achieve the objective of a decision and assess the options in terms of their advantages and disadvantages.

TQC brought judicial review proceedings to challenge the decision.

The key allegation was that the council abdicated its decision making responsibilities under s 77(1) LGA by relying on the manager to identify and assess the reasonably practicable options for addressing cyclist safety on Thorndon Quay when that task could be undertaken only by the council or its lawful delegate.

The High Court dismissed the judicial review application. TQC appealed.

Applicable principles: Local Government Act 2002, ss 76, 77, 78, 79, 82A – proper interpretation of s 76 LGA (substantive obligation in s 76(1) and procedural obligations in s 76(3)) – did the council discharge its s 77(1) LGA obligation to identify and assess all reasonably practicable alternatives for the achievement of cyclist safety? (no) – did s 82A LGA apply to this consultation process, requiring the analysis of the reasonably practicable options to be made publicly available? (no) – what relief is appropriate?

Held: The appeal is allowed.

The consequence of only the manager submitting the preferred option was that the committee had insufficient information to reach a properly informed view of the reasonably practicable options, or to assess their advantages and disadvantages, as required by s 77(1) LGA.

The court made a declaration that the council’s decision making processes did not comply with its obligations under s 77(1) LGA but held it was not appropriate to formally quash the decision or direct that the angled parking be restored.

This was because matters had moved on since the decision was made. The road safety expert evidence was that the angled parking was unsafe and parallel parking provided a greater degree of safety for cyclists.

Note: The court also took the opportunity to clarify and confirm the correct interpretation of s 76 LGA (decision making), observing that a passage in an earlier decision (Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at [33]) was potentially open to different interpretations and could give rise to some confusion.

Thorndon Quay Collective Incorporated v Wellington City Council [2024] NZCA 316