Wellington International Airport Ltd v Waka Kotahi

• Jurisdiction: New Zealand
• Judge: Grice J
• Judgment Date: 06 May 2022
• Neutral Citation: [2022] NZHC 954
• Docket Number: CIV-2022-485-000162
• Court: High Court

In the matter of An application for judicial review

Between

Wellington International Airport Limited

Applicant

and

Waka Kotahi New Zealand Transport Agency

First Respondent

and

Wellington City Council

Second Respondent

and

Greater Wellington Regional Council

Third Respondent

[2022] NZHC 954

Grice J

CIV-2022-485-000162

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Judicial Review — application for an interim injunction to suspend the construction of a signalised crossing being constructed by the respondents who were all statutory bodies — pending judicial review proceedings — applicable principles for granting injunctive relief — Judicial Review Procedure Act 2016

Appearances:

J L W Wass and M R G van Alphen Fyfe for Applicant

A J Wicks and J P Papps for First Respondent

E L Higbee for Second Respondent (No appearance by leave)

D M Kessell-Haak for Third Respondent (No appearance by leave)

The application was declined.

JUDGMENT OF Grice J

(Interim Injunction)

Contents

Introduction	[1]
Summary of conclusion	[15]
Interim injunction principles	[21]
The judicial review claims	[28]
First cause of action: Consultation	[29]
Second cause of action: Relevant considerations	[33]
Third cause of action: Unreasonableness	[38]
Fourth cause of action: Unlawful fetter of discretion	[39]
Relief	[40]
Principles of judicial review	[42]
Consultation	[44]
Disclosure	[52]
Unreasonableness	[55]
Mandatory considerations	[56]
Fettering discretion	[58]
Decision-making framework	[61]
Statutory framework	[72]
The process	[81]
First cause of action - failure to consult	[147]
Wellington Airport's submission	[160]
Consultation summary	[166]
Context	[169]
Errors in the modelling	[180]
Second cause of action - failure to consider relevant considerations	[188]
Failure to take into account the Traffic Control Devices Rule	[191]
Third cause of action - unreasonableness	[199]
Fourth cause of action - fettering/constrained process	[200]
Provisional assessment on the merits of the substantive application	[210]
Interim relief	[211]
Necessity to preserve the position of the applicant	[213]
Discretion on the circumstances of the case	[227]
Conclusion	[233]
Costs	[235]

Introduction

1 Let's Get Wellington Moving (LGWM) is charged with oversight of a strategy and its component projects and activities to solve Wellington's land transport problems. It brings together in a partnership the three main agencies governing land transport in the city and the region. The main agency charged with public and regional road transport strategy is the Greater Wellington Regional Council. The Wellington City Council is responsible for roads, except state highways, footpaths and cycleways in the city. The New Zealand Transport Authority, known as Waka Kotahi, 1 is responsible for the National Road Transport strategy as well as state highways and managing the central government funded National Road Transport Fund. 2

2 LGWM is funded by the three agencies in various proportions to an overall sum in the vicinity of $8 billion. It has been under local and national, political pressure to deliver on projects. One of those projects includes the lowering of the speed limits and construction of a pedestrian and cycle crossing along Cobham Drive, a four-lane state highway which is the primary route from the city through the Mt Victoria tunnel to the airport and the eastern suburbs. The speed limit has already been reduced and that is outside the scope of this proceeding although it has some indirect bearing on the issues at hand.

3 This application seeks an interim injunction to suspend the construction of the at-grade (level) signalised crossing on Cobham Drive by Waka Kotahi. It will have separate offset crossings for each side of the road, each separately controlled. The proposed crossing will cost about $2.8 million to construct and will be the only pedestrian/bike crossing for 1.8 kilometres of that four-lane highway.

4 Wellington Airport, the applicant, opposes the construction of an at-level crossing as opposed to a grade-separated crossing (such as an overpass) at this stage. It has filed a substantive application for judicial review of the decisions related to the construction of the crossing upon which the present interim application is based. While it has no formal representative role it says it represents the interests of

businesses based at the airport, including a hotel, as well as passengers who use the airport and other residents and businesses who use Cobham Drive and surrounding roads, including taxi drivers

5 Wellington Airport says that it had no option but to apply for an interim injunction to immediately stop the construction. It says it cannot wait until a full hearing of its judicial review application, which is scheduled for 20 and 21 July 2022 as once construction starts, traffic to and from the airport will be delayed due to the construction works and there will be an inevitability about the crossing. Wellington Airport says the damage will have begun and it is not in the public interest to use money earmarked for transport projects on construction if the project is subsequently stopped. It also says the construction of the crossing will entrench that solution, despite LGWM's resolution that the effects of the crossing will be monitored and work will continue on another medium — or long-term solution.

6 Wellington Airport acknowledges that judicial review does not target the merits of a decision but rather the process by which the decision is reached and any flaws in the decision-making or unreasonableness in the public law sense by the decision-maker. 3 While the Court in a judicial review application is not concerned with the intrinsic merits of a decision, 4 they may be relevant if the decision was one that no reasonable decision-maker could have made in the circumstances.

7 Waka Kotahi had the statutory responsibility to approve the construction of the crossing and to fund it. 5 It did so and was supported in that by an earlier decision of the LGWM to endorse the business case for the project.

8 A public announcement that the crossing would be built was made in March 2022. That announcement had followed a process which included a public consultation in relation to the crossing proposal in June/July 2021. The LGWM Board approved the business case on 27 January 2022. Waka Kotahi approved the funding

for the crossing on 10 February 2022. It also led the project, including the consultation process on the project, under the LGWM banner. There were two main issues which were highlighted in the business case. The first was that of safety for pedestrians and cyclists given the lack of a pedestrian crossing in that portion of the road. There has been one fatality in the vicinity caused by a pedestrian attempting to cross the highway as well as a number of serious accidents involving pedestrians and cyclists. The second issue is the extra delay which would be caused to motorists using Cobham Drive

9 Wellington Airport is interested in all proposals affecting transport in the region, and in particular the routes to and from the airport. It has been engaged with LGWM for some years in relation to the Wellington transport strategy and various projects. The Cobham Drive crossing proposal is of great concern to it. It made extensive submissions during the consultation phase on the crossing in June/July 2021. It has also written to the Chairman of the Board of Waka Kotahi directly about its concerns. It considers the decision to construct a level signalised crossing on Cobham Drive was made without proper consideration of the issues, particularly as they relate to the delays likely to be caused to vehicles travelling to and from the airport on Cobham Drive.

10 Wellington Airport says that LGWM and Waka Kotahi failed to properly consult in the public law sense. In particular, it says LGWM and Waka Kotahi did not supply it with documents and information it asked for which would have enabled it to make proper submissions, the submissions it made were not properly considered, and there were material errors in the business case for the crossing presented to the LGWM Board, upon which it relied to make the decision approving the crossing project. It says the decision to construct the crossing is unreasonable in the legal sense.

11 Wellington Airport also says that LGWM and Waka Kotahi had a closed mind, in that they had already determined that a signalised crossing on Cobham Drive would be constructed prior to consultation. Therefore, they did not properly consider the submissions, which were overwhelmingly against a level signalised crossing but favoured an overpass or underpass which when constructed would not interrupt traffic flow.

12 Waka Kotahi says there have been no errors which would require it or LGWM to reconsider the decisions concerning the crossing. It was due to start construction on 2 May 2022 but agreed to delay commencement of the construction pending this decision on the interim injunction application.

13 Despite the truncated preparation time for this hearing, the parties have ensured that the Court was well informed by the provision of affidavits of the relevant parties, including an economic expert for Wellington Airport. He critiques the arithmetic, assumptions, and modelling tool used to prepare the business case relied upon in the decision to construct the crossing. Waka Kotahi relies on the evidence of its expert transport engineering consultant who assisted in the preparation of the business case. His...