Imported Motor Vehicle Industry Association Inc. v Minister of Transport
| Jurisdiction | New Zealand |
| Judge | Miller J |
| Judgment Date | 01 December 2011 |
| Neutral Citation | [2011] NZHC 1702 |
| Date | 01 December 2011 |
| Court | High Court |
| Docket Number | CIV-2011-485-1972 |
[2011] NZHC 1702
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-1972
In The Matter Of an application for review under Part 1 of the Judicature Amendment Act 1972
DPH Jones QC for Applicant
H L Dempster and J Gorman for Respondent
JUDGMENT OF Miller J
The Imported Motor Vehicle Industry Association Inc, which I will call the IMVIA, 1 seeks judicial review of emissions standards for used light petrol-powered motor vehicles imported into New Zealand.
From 1 January 2012 such vehicles must have complied when manufactured with an emission standard known as Japan 05, or the equivalent standard in other jurisdictions, before they may be certified for use on New Zealand roads. This development is the third and final phase in the implementation of improved emission
standards prescribed under the Land Transport Rule: Vehicle Exhaust Emissions 2007, which came into force in May 2008.
The IMVIA asks the Court to order the Minister of Transport, whose predecessor made the Rule under delegated legislative authority, to review the Rule and its effects. Because the third phase requires no further executive action and will happen within weeks, Mr Jones QC realistically acknowledged that the third phase will take effect before such review is completed. It is not suggested that the Court may compel the Minister to change the Rule in the meantime.
The IMVIA relies on an alleged promise made in 2008 by the then Associate Minister of Transport that the Rule would be reviewed within three years of its implementation. The promise is denied, and the Minister says that in any event the Rule has been reviewed. The IMVIA's rejoinder is that there has been no real review, for the Minister's mind was and is closed to the evidence.
New Zealand has no domestic motor vehicle manufacturing industry, and not until 2003 did it impose emission standards on new and used vehicles imported into the country. Under the 2003 regime minimum standards were set for new vehicles, but used ones need only have been built to an approved standard applicable when manufactured.
In December 2005 Cabinet decided that the Ministry should investigate minimum emissions standards for used petrol and diesel vehicles. The decision contemplated that the standards would be updated continually to include new emissions standards as they were adopted internationally. The Ministry was directed to consult interested parties about updating the 2003 regime to incorporate the Japan 05 standard and its European equivalent, known as Euro 4, for new vehicles. The Ministry was also to investigate emissions standards for used vehicles, regarding which emissions standards were thought at that time to raise potential international trade issues.
Public consultation followed during 2006. The IMVIA was heavily involved in this process, which led to a Cabinet decision on 30 January 2007. Cabinet had before it a paper from the Ministry which recommended updated emissions standards for used vehicles in preference to alternative mechanisms such as a rolling age ban. The paper predicted that if standards were not updated, importers would continue purchasing vehicles that only just exceeded the minimum standard, a practice which had resulted in the average age of imported vehicles increasing each successive year.
Cabinet agreed that the Ministry should prepare a draft Rule for consultation, proposing minimum emission standards based on a time lag from implementation in Japan. So, for example, the minimum standard in New Zealand in 2008 would be that implemented in Japan six to eight years earlier, and the minimum standard in 2013 would be that implemented in Japan four years earlier.
The draft Rule was the subject of formal consultation which began in May 2007. There were some 84 submissions, including a comprehensive submission from the IMVIA dated 9 July 2007. The theme of the IMVIA submission was that the proposed Rule would cause the average age of vehicles in the national fleet to increase and the scrappage rate to decrease, would not achieve the stated objectives of reducing pollution and improving air quality, would lead to an increase in harmful exhaust emissions, and would cause negative social effects including job losses and loss of mobility for the population, an effect which would especially target low income earners and those with large families.
Noting that the draft Rule proposed that vehicle emission standards be implemented in stages, the IMVIA further submitted that the Rule should prescribe that a comprehensive review be conducted and consulted on before successive phases were implemented. It would be imprudent to proceed with successive phases of implementation without thoroughly analysing and reviewing the effects of previous stages.
On 11 June 2007 the Cabinet Business Committee considered whether a rolling age ban should be adopted, in addition to emissions standards. A paper noted that the decision to implement emissions standards would act as a de facto age ban, so achieving the desired goal of modernising the vehicle fleet. A formal age ban would supplement the standards, but it posed technical and operational difficulties. It was decided that a rolling age ban be should reconsidered after the emissions standards had been in force for three years.
The Rule was signed into law on 27 November 2007 by the then Minister for Transport Safety, the Hon Harry Duynhoven. The IMVIA's plea for separate and successive Rule changes preceded on each occasion by further studies was rejected despite sustained lobbying in the interim; rather, the Rule provided for staged implementation.
I record that the IMVIA does not allege any reviewable error affecting the making of the Rule; it complains rather that it was later promised a full review of the Rule's implementation before the third phase took effect but the Minister has since 2010 twice refused to conduct such review. I will mention the empowering legislation and the Rule itself before returning to the narrative dealing with the alleged review.
The Rule was made under the Land Transport Act 1998, under which the Minister has certain objectives, notably contributing to an integrated, safe, responsive, and sustainable transport system:
Objectives of Minister
The objectives of the Minister under this Act are—
-
(a) to undertake the Minister's functions in a way that contributes to an integrated, safe, responsive, and sustainable transport system; and
-
(b) to ensure that New Zealand's obligations under international agreements relating to land transport are implemented.
Section 152 authorises the Minister to make what are called ordinary rules for all or any of a number of purposes, including environmental sustainability and land transport safety:
Power of Minister to make ordinary rules
The Minister may make rules (ordinary rules) for all or any of the following purposes:
-
(a) safety and licensing for any form of transport within the land transport system, including (but not limited to) technical requirements and standards:
-
(b) assisting land transport safety and security, including (but not limited to) personal security:
-
(c) assisting economic development:
-
(d) improving access and mobility:
-
(e) protecting and promoting public health:
-
(f) ensuring environmental sustainability:
-
(g) any matter related, or reasonably incidental, to any of the following:
-
(i) the Minister's objectives under section 169:
-
(ii) the Minister's functions under section 169A:
-
(iii) the Agency's objective under section 94 of the Land Transport Management Act 2003:
-
(iv) the Agency's functions under section 95 of the Land Transport Management Act 2003:
-
(h) any other matter contemplated by a provision of this Act.
Under s 155, ordinary rules may prescribe standards for vehicles, including their emissions and environmental requirements.
An ordinary rule must be signed by the Minister and contain a statement specifying its object and detailing any consultation which has followed publication of the Minister's intention to make it. 2 As a matter of practice the New Zealand Transport Agency follows a rule-making process with several phases, the third of which is mandatory and involves publishing a draft for public consultation. This process was followed when the Rule was made, as outlined at [9] above.
The Rule sets out its objective:
… to progressively improve the emissions standards of vehicles entering the New Zealand fleet by requiring newly imported vehicles to have been manufactured to progressively increasing new emissions standards. For a given engine size, newer vehicles that are manufactured to newer technologies are also likely to be more fuel-efficient and this, in turn, will help to reduce the emissions of “greenhouse” gases such as carbon dioxide.
It also states that extensive consultation had taken place with affected industry groups, beginning in mid 2005, and summarises the principal steps in that process.
The Rule specifies that its requirements must be met by a motor vehicle before it may be certified for entry into service in New Zealand for purposes of the Land Transport Rule: Vehicle Standards Compliance 2002. Section 2 of the Vehicle Exhaust Emissions Rule provides that, with certain exceptions, a vehicle to which the section applies, which includes petrol and diesel-powered motor vehicles, must have complied when manufactured or modified with an approved vehicle emissions standard specified in tables contained in Schedule 1.
For my purposes it suffices to focus on the standards applicable to used petrol-powered motor vehicles made in Japan, which...
To continue reading
Request your trial