Case Brief: Thorndon Quay Collective Inc v Wellington City Council [2024] NZCA 316

Summary

Thorndon Quay Collective Incorporated("TQC") successfully secured a declaration that Wellington City Council ("WCC") failed to properly consider all reasonable options when making a decision to reconfigure angle parking to parallel parking on Thorndon Quay, as required by the Local Government Act 2002 ("LGA").

Background

In June 2021 the WCC proposed to reconfigure parking on Thorndon Quay from angled parking to parallel parking to improve cyclist safety. Consultation was conducted as part of the “Let’s Get Wellington Moving” (“LGWM”) initiative.

TQC, as a representative body for local businesses, raised concerns about the adverse impacts of the parking changes on businesses. Alternatives were suggested, such as; reducing the speed to 30kmph in line with other speed reductions around the city, or repainting the angled parks on a relaxed angle so cars would have a clearer line of site of oncoming cyclists.

The WCC delegated its decision-making power to the Planning and Environment Committee. A Council employee was then tasked with identifying all available options to reduce the safety risk, but failed to present all options to the Committee.

On 24 June 2021 the Planning Committee passed a traffic resolution deciding to reconfigure the parking (“Decision”). A report distributed in support of the Decision noted that it was intended to make it safer “in the short term…, whilst long term decisions are made”.

TQC lodged an application for judicial review of the Decision, alleging that the Council failed to adhere to its decision-making responsibilities under the LGA.  

The High Court dismissed TQC's application. TQC appealed that decision to the CA.

The Case

The focus of the appeal was on the interpretation and application of:

• Sections 76-81 of the LGA, which outline the decision-making requirements pertaining to local authority decisions; and

• Sections 82 and 82A, which require compliance with principles of consultation (if applicable), and certain information requirements for such consultation, such as making proposals publicly available.

Section 76(3)

The Court of Appeal (“CA”) found the High Court erred in its interpretation of section76(3) of the LGA. This misinterpretation did not result in a different outcome, but the CA clarified its interpretation:

• ‍Substantive obligation – every decision of a local authority must be made in accordance with ss77-82 as are applicable. However, under sections 77 and 78, it has broad discretion as to how it can best achieve compliance:
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  • Section 77 requires the identification of all reasonably practicable options, and the assessment of these, and section 78 requires a local authority to give consideration to the views and preferences of persons likely to be affected by (or have an interest in) a matter. How the local authority conducts these processes, are at its discretion.
• ‍Procedural Requirements – In addition to the substantive obligation, there are two procedural requirements:
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  • Local Authorities must ensure that its decision-making processes “promote compliance” with relevant LGA decision-making and consultation obligations, regardless of significance.
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  • For significant decisions, there is an additional procedural requirement; a local authority must ensure that s77-82 are appropriately observed. This involves the local authority standing back and considering whether compliance has in fact been achieved, before making the significant decision.

‍Section 77

The LGA requires local authorities to identify all reasonably practical options for achieving the objectives of a decision, and to assess the advantages and disadvantages of each option.

The CA found that because a WCC employee was tasked with considering all options, and not all of those options were provided to the Committee for consideration, the Committee (as the WCC’s delegate) had insufficient information to reach a properly informed view.

The appeal was successful on this basis.

Section 82A

If a local authority is required to consult in accordance with section 82, they must make certain information publicly available. Given its finding that the Council had not complied with section 77 (to identify options), it was not necessary for the CA to decide this point. However, the Court clarified that s 82A only applies to consultations specifically required by the LGA, not all consultations. The Decision was not subject to the consultation principles in section 82.

Section 79

Section 79 states  it is the responsibility of a local authority to make judgments (in its discretion), about how to achieve compliance with sections 77 and 78. Section 77 is detailed above. Section 78 requires the consideration of the views and preferences of persons affected by or interested in the relevant matter.

The CA found that section 79 confers a broad discretion on local authorities, and undue formality would slow down local government decision-making significantly. While the Council did not formally make judgments, it could be inferred that they had informally made judgments about the process being appropriate. The CA commented that“ decision-making is a process, not a specific point in time”, and requiring exhaustive compliance with procedural details for every decision would be impractical and burdensome.

Result

The Court of Appeal granted TQC a declaration that the Council's decision-making processes did not comply with its obligations under section 77. However, it declined to formally quash the decision or order the reinstatement of angled parking due to:

• The Decision being intended as an interim measure. As part of the LGWM initiative, a two-way cycle lane is to be constructed, which would require removal of the angled parking.
• The evidence before the Court showed safety concerns. It would not have been appropriate for the Court to order the Council to take steps that would potentially put the safety of cyclists at risk.  

The case provides valuable guidance for local authorities in navigating the delicate balance between strict compliance with the LGA and the practical realities of their operations. The CA acknowledged that while local authorities are obligated to comply with the LGA's decision-making procedures, local authorities should not be burdened with excessively formal procedures and meticulous record-keeping for every decision, particularly those of low significance. However, there should still be a clear record of the decision-making process, even if it's informal.

For further information on this case orsimilar issues, please contact Director Brigitte Morten.

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