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

A recent decision of the Court of Appeal provides important guidance to local authorities on the obligation to consider all reasonably practicable options when making decisions. The Court found that the Wellington City Council (Council) followed an incorrect process in deciding to change parking spaces on Thorndon Quay. However, the Court did not set aside the Council’s decision and the changes involved have continued. 

Background

After public consultation, in June 2021 the Council decided to change parking spaces on Thorndon Quay from angled to parallel parking, effectively reducing the number of spaces available. The stated reason for the changes was improving cyclist safety.

Thorndon Quay Collective Inc (TQC), a group of nearby businesses, challenged the Council’s decision in the High Court, claiming that the Council had not complied with its decision-making obligations under the Local Government Act 2002 (LGA). The High Court dismissed TQC’s application. Undeterred, TQC appealed. 

In particular, the Court of Appeal considered a local authority’s obligation to identify all reasonably practicable options. 

Obligation to consider all reasonably practicable options

When a local authority makes a decision, section 77(1) of the LGA requires it to seek to identify all reasonably practicable options for achieving its objective. It must also assess the advantages and disadvantages of each option.

The Council’s Transport and Infrastructure team had identified and reviewed a number of options for addressing cyclist safety, including options submitted by TQC. However, the Transport and Infrastructure team only submitted its recommended option and the status quo to the Planning and Environment Committee - who was the decision-maker.

The Court of Appeal found the process came ‘perilously close to an unlawful sub-delegation’. It acknowledged an experienced Council officer may be best-placed to identify practicable options on behalf of the local authority. However, it said that a local authority will have trouble satisfying itself that it has identified all reasonably practicable options if Council staff only submit their preferred options for decision. In this instance, the Court of Appeal concluded the Committee did not have enough information to reach an informed view of the reasonably practicable options, breaching section 77(1).

The decision offers clear guidance to local authorities on how to meet the requirements of section 77(1) of the LGA, even where staff have been tasked to do the heavy lifting in developing options. A decision-maker must be given enough information to satisfy itself it has identified and assessed all reasonably practicable options. If it does so, then it will meet the requirements of section 77(1). What this means will depend on the circumstances in any given case, but will usually mean that options officials have identified as potentially impracticable, and appropriate analysis, should still be put before the decision-maker.

Did the High Court judge correctly characterise the Council’s obligations?

The High Court had held that, as a decision of ‘medium significance’ under the LGA, the Council was required to adopt decision-making processes that ‘promote’ compliance with the LGA. These could include the requirements to identify all reasonably practicable options, consider community views, or identify decisions that are significantly inconsistent with Council policies. It held that the Council did not need to ensure that all the relevant provisions of the LGA were appropriately observed, as would be necessary for a significant decision.

The Court of Appeal disagreed, and held that decision-making processes required ‘actual compliance’ with the LGA. While the High Court had inaccurately described the Council’s decision-making requirements under the LGA, the Court of Appeal held that the High Court had correctly considered whether actual compliance of the relevant provisions had been achieved.

Did the Council provide the necessary information to stakeholders?

When consulting on a proposed decision, section 82(1) of the LGA requires a local authority to provide stakeholders with reasonable access to information and an opportunity present their views. Section 82A of the LGA provides that where the LGA requires a local authority to consult on a decision, it must make specific material available. This will include an analysis of the reasonably practicable options identified under section 77(1). The Court agreed with the Council that as the LGA did not require consultation in respect of this particular decision, the specific information requirements under section 82A of the LGA did not need to be complied with.

What discretion does the Council have to make its decisions?

Section 79 of the LGA gives a local authority discretion to judge how to best comply with its obligations under sections 77 and 78 of the LGA. TQC submitted there was no evidence of Council having made that judgement in this case. The Court acknowledged the large number of decisions that local authorities regularly make, each with varying degrees of significance. The Council was not required to adopt an unnecessarily formal approach to recording that it had met its obligations under section 79, as this approach would likely slow down local government decision-making significantly.

Result

The Court declared the Council’s decision-making process did not comply with section 77(1) of the Local Government Act 2002. However, the Court was unwilling to set aside the Council’s decision or refer it back to Council for reconsideration.

Further evidence provided by the Council showed that developments had been made to the area in the time since the original decision. In August 2023, the Council’s Regulatory Committee adopted a resolution implementing bus and cycle lanes as part of the Let’s Get Wellington Moving project. These changes would have required removal of the angled parking regardless, and it would not have been appropriate for the Court to endanger cyclists while various alternatives were explored.

In these circumstances, the Court stated the declaration and guidance provided in the judgment would ‘hopefully’ ensure the Council’s future decisions would be consistent with its obligations under the LGA. 

This article was written with the assistance of Jori Whitfield-Topp, a Solicitor in the Public Law and Dispute Resolution team.