ISLAND BAY RESIDENTS ASSOCIATION v WELLINGTON CITY COUNCIL [2019] NZHC 1240 [4 June 2019]

ISLAND BAY RESIDENTS' ASSOCIATION v WELLINGTON CITY COUNCIL [2019] NZHC 1240[5 June 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-753[2019] NZHC 1240BETWEEN ISLAND BAY RESIDENTS'ASSOCIATIONApplicantAND WELLINGTON CITY COUNCILRespondentHearing: 20 & 21 May 2019Counsel: C Anastasiou for ApplicantN M H Whittington and M A Hori Te Pa for RespondentJudgment: 5 June 2019JUDGMENT OF CHURCHMAN JTable of ContentsIntroduction [1]Urban cycleways [8]History of Island Bay cycleway [16]Nature of proceedings [55]The basis of the challenge [59]Breach of Local Government Act consultation obligations [65]Technical or peer review of concept designs [65]Inadequate involvement in determining content of consultation material [73]Inclusion of applicant's preferred design option [81]Breach of commitment [91]Consultation period too short [98]Obligation to consult on the "Mayor's Option" [120]Preference of majority not reflected [131]Breach of common law natural justice [135]Breach of NZBORA [147]Breach of procedural legitimate expectations [150]Mandatory relevant considerations [162]Outcome [179]Introduction[1] The Island Bay Residents Association Inc (the Association) was incorporatedin October 2015. It was formed to advance the wishes and priorities of Island Bayresidents in relation to the development of their suburb.[2] The only qualification for membership was that members reside in Island Bay.There is no membership application fee or annual subscription. Counsel advised thatit had a membership list with some 435 names on it.[3] Island Bay, as the name implies, is a seaside suburb and is located onWellington's south coast. It gets its name from Tapu Te Ranga Island, a short distanceoff the coast. The area has been inhabited for hundreds of years and in pre-Europeantimes, the island and adjacent coast supported Māori Pa and other settlements.[4] After European settlement, Island Bay developed, in the late 19th century, as abase for fishing boats, many operated by fishermen of Italian descent.[5] Its growth as a residential suburb dates from the 1920s and it is now home tomore than 7,000 residents. It is, by Wellington standards, relatively flat with the mainstreet (The Parade) rising gradually from the coast northwards to the adjoining suburbof Berhampore.[6] Methods of transport in Island Bay have changed over the years. Thedevelopment of the suburb for residential purposes owed much to the extension of theWellington City tramline to it in the early part of the 20th Century.[7] Many of the inhabitants of Island Bay travel to other suburbs for work,education and social or recreational activities. In terms of public transport options,trams were long ago replaced by trolley buses which have more recently been replacedby diesel buses. Many residents also travel by car. The Parade is the main transportroute into and through the suburb.Urban cycleways[8] In recent decades, cycling has become more popular in Wellington as both ameans of transport and a recreational activity. Cycling is seen as having public healthbenefits in terms of promoting fitness and reducing obesity, as well as potentialenvironmental benefits in reducing carbon emissions that contribute to consequencessuch as climate change.[9] Along with likeminded authorities throughout New Zealand and many parts ofthe developed world, the Wellington City Council (the Council) has promotedstrategies to encourage cycling. The Council has a programme known as theWellington Urban Cycleways Programme. As at August 2016, its stated aim was: to create a sustainable, liveable, attractive city that offers choices abouthow to travel and an all ages and abilities cycling network.[10] Over the past decade, the Council's budget for the implementation of the UrbanCycleways Programme has increased from $65,000 in 2008 to $20 million in 2018.[11] In furtherance of its aims to create Urban Cycleways, the Council hasimplemented a number of different cycleway designs in various parts of Wellington.1The precise designs used depend on a number of variables including the nature of theroadway, the volume and distribution of traffic, the speed of traffic, the width of theroad and patterns of actual and anticipated cycle usage.[12] The major consideration determining the design options for the different typesof cycleway is that of safety. If cyclists are to be encouraged to share roadways withvehicles, particularly heavy vehicles such as trucks and buses, cycleway design needsto adequately address the safety hazards that vehicular traffic presents to cyclists, andalso the hazards that cyclists present to motorists.[13] In this regard, the Council's aim to provide a cycling network suitable for "allages and abilities" presents particular problems. While fit, experienced and confident1 A full list of Wellington's cycleways including cycle lanes, shared pathways, clearways and buslanes able to be used by cyclists, was set out at Exhibit HBF9 to the affidavit of H B Fraser, atraffic engineer who filed affidavit evidence in support of the application.cyclists may be able to negotiate roadways at a similar speed and in a similar manneras cars, so-called vulnerable cyclists (children, the inexperienced, or less able cyclists),in order for their safety to be assured, may need a solution that involves some form ofseparation from the main road carriageway. Depending on the extent to which such asolution interacts with footpaths or pedestrian crossings, it also has to provide a safeenvironment for pedestrians as well.[14] Cycleway solutions can vary from low-cost/low-tech options such as thepainting of a cycle image on the roadway along with two chevrons known as"sharrows" indicating that the carriageway is shared by both vehicles and cyclists, tohighly engineered and high cost solutions involving the creation of pathways that arephysically separated from the carriageway, including options for cycleways locatedbetween the footpath kerb and parked cars.[15] The implementation of such highly engineered cycleway solutions inevitablyinvolves some compromise to the rights that other road users have previously beenable to enjoy, particularly in relation to where and how they park their vehicles oraccess properties adjacent to the roadway, and how fast they can proceed along theroadway or through traffic control mechanisms such as roundabouts.History of Island Bay cycleway[16] For a period of some 15 years prior to 2013, Island Bay had a cycleway thatcould be described as low-cost/low-tech. It consisted of white lines with images ofbicycles painted on the carriageway at various points between intersections.[17] Ms Greco, for the applicant, deposed that it "ran the length of The Paradeexcept for the shopping centre" but Mr Becker, for the respondent, deposed that it ranalong the southern half of The Parade from the beach to the Island Bay shops. Bothwere agreed that it involved cyclists cycling in that part of the carriageway used byvehicles.[18] The Parade is designated a Principal Road in the roading hierarchy set out inthe Wellington City District Plan. Such roads are described as having the function ofproviding access to arterial roads and motorways, having a dominant throughvehicular movement and carrying major public transport routes. Ms Fraser describedit as carrying up to 10,000 vehicles per day at its northern end. She noted that this wasmore than the 3,000–7,000 per day described in the District Plan for Principal Roads.[19] In 2013, the Council developed a proposal for a cycleway adjacent to the kerbwith the area for carparking previously adjacent to the kerb being moved out onto thecarriageway. The Council embarked on a consultation process between July 2013 andApril 2014. Ms Greco deposes that only 188 written submissions were received withonly 66 of those from residents of Island Bay. The majority of the written submissionsfavoured the kerb-side proposal.[20] The Council prepared a kerb-side design and consulted on this with the IslandBay community in mid-2014. Ms Greco deposes that 486 residents of "wider" IslandBay and 243 people outside Island Bay responded. She says 57 per cent of submitterswere opposed to the kerb-side design. Mr Dooley (a witness for the Council) deposesthat it was in fact 57 per cent of the submitters with Island Bay residential addresseswho were opposed to the kerb-side design and that the total percentage of allsubmitters opposed to the kerb-side design was 45 per cent.[21] Work on the kerb-side cycleway commenced in September 2015 and wascompleted in February 2016.[22] The construction of a kerb-side cycleway was not popular with a number ofIsland Bay residents and business people. Indeed, almost as soon as constructioncommenced, the Association was incorporated and began to organise opposition to it.It conducted its own survey of local residents in January 2016 (before the cyclewaywas operational) and of the approximately 2,000 responses it received, 80 per centindicated a preference for a "roadside" rather than a kerb-side cycleway.[23] Public reaction to this cycleway, and others being developed by the Council,prompted the New Zealand Transport Agency (NZTA) to commission a review of theCouncil's programme.[24] The background to this is that the Government had implemented an UrbanCycleways Programme (UCP) providing $100 million of Government funding withthe fund being supplemented by money from Local Government. The objective of theprogramme was to improve urban cycling infrastructure between 2014/2015 and2017/18. The total combined funding over the three-year period was to be$333 million.[25] The Council had agreed to deliver a UCP across specific Wellington locationsbetween 2015-2018 with the total proposed co-investment by Government and theCouncil being $34.7 million. This was part of a planned total investment by theCouncil of $101 million in its UCP over 30 years.[26] NZTA commissioned an independent consultancy, Morrison Low, to reviewthe Council's UCP, including the Island Bay cycleway.[27] The 2016 Morrison Low report contained criticisms of a number of aspects ofthe Council's Cycling Framework and made some comments specifically relevant tothe Island Bay cycleway including:• There is a community perception that the cycleway in Island Bay is a poorsolution and that it was delivered without proper community engagementand consultation. This perception has "spilled over" to other plannedprojects• Some aspects of the programme have not had the necessary resourcesdirected to them (e.g. communications and engagement)• Wellington is not the only city to experience adverse community reactionto a delivered cycle way (Dunedin, for example) and internationalevidence suggests that cycleways are inherently difficult to successfullydeliver because of sometimes polarised public attitudes and a sense thatcyclists are being favoured over other road and footpath users.[28] The Council had commissioned MWH (an independent engineeringconsultancy) to undertake a post-construction safety audit on the Island Bay cyclewayand that was completed and presented to the Transport and Urban DevelopmentCommittee (TUDC) on 30 June 2016. That document, and an independent peer reviewof it undertaken by Wilkie Consultants, did not find the cycleway, as a whole, to beunsafe but did identify a number of safety concerns and potential solutions to thoseconcerns.[29] On 30 June 2016, the TUDC passed a resolution which included the statement:Agree that re-engagement with the Island Bay community commence as soonas practical and be community-led with the detailed engagement approach tobe developed by representatives from the Island Bay Residents' Association,local businesses, Cycle Aware Wellington and interested stakeholders togetherwith council and be ready for presentation to the September 2016 Transportand Urban Development Committee meeting.[30] By way of implementation of that resolution, a group called "The Syndicate"was set up by the TUDC to facilitate the re-engagement process. That group includedtwo representatives from the Association, two representatives from Cycle AwareWellington (CAW), and one representative from the Council.[31] The Syndicate undertook the engagement process by implementing aprogramme called "Love the Bay".[32] The Love the Bay programme was undertaken in the latter part of 2016 andinvolved:(a) the establishment of a website which had relevant documentationposted to it;(b) a "drop-in shop" located in Island Bay where interested parties couldcome in and view plans and photographs and other material, and talk toCouncil staff or consultants about the programme; and(c) a series of workshops.[33] In March 2017, the Council provided all of the information obtained from theLove the Bay initiative to independent traffic engineering consultants, Tonkin + TaylorLtd (T+T). They were tasked with preparing a number of options for furtherconsultation that reflected the community objectives as identified from the Love theBay programme, and also the Council's cycling objectives which included:Provide transport choices by increasing the opportunity for people to ridebikes so as to improve the sustainability, liveability and attractiveness ofWellington.[34] T+T were requested by the Council to include in their final options one whichwas based on the status quo (the kerb-side cycleway) and one based on the carriagewaycycle lane which had existed prior to the construction of the kerb-side cycleway.[35] The various designs prepared by T+T were made publicly available atcommunity engagement drop-in sessions. The feedback from such sessions wascollated by the Council and a spreadsheet with over 2,400 individual items ofcommunity feedback was provided to T+T.[36] Mr R W Dunn of T+T deposed that their design engineers had read eachindividual piece of feedback in order to formulate the options to take forward forformal public consultation.[37] T+T (together with Studio Pacific Architecture) produced a substantial designreport in July 2017. It identified four options (Options A-D).• Option A was described as "Roadside Cycle Lane Next to Parking –Original Layout with Enhancements";• Option B was described as "One-Way Separated Kerbside Cycleway –Current Layout with Enhancements" with the cycleway at road level;• Options C and D were both described as "One-Way Separated KerbsideCycleway – Above Road Level", with Option C having parallel parkingwhile Option D would have angle parking.[38] Mr Dunn deposes that although the four options were high level conceptualdesigns intended to convey the general layout of the road and cycleway, they alsocontained a high level of engineering and safety assessment. He also refers tosection 4 of the Main Design Report which outlines how the community feedbackfrom the Love the Bay engagement and the MWH road safety audit findings informedthe concept design responses.[39] The Council commenced its formal consultation on Options A-D on 31 July2017.[40] On 27 July 2017, Mr Becker (a Council staff member) had emailed theAssociation, CAW and other external stakeholders with copies of the consultationdocuments and Council's media release.[41] Mr Becker deposes that the Council had decided not to consult on an optionidentical to the original cycleway because it did not comply with NZTA andengineering safety guidelines, nor to consult on an option identical to the existingcycleway because the 2016 Post-Construction Safety Audit had indicated that safetyimprovements were required. He deposes that Option A represented a modifiedversion of the original cycleway and Option B reflected the current cycleway withenhancements.[42] The Council determined that 14 days was an appropriate period for the publicto provide written submissions on the options given the significant amount of priorengagement that had occurred.[43] The Association organised a public meeting on the Options which took placeon 31 July 2017. Council officials and engineering consultants attended this meeting.At the meeting, Ms Greco advanced a proposal referred to as "Option E". That wasessentially a reversion to the original cycleway. A vote by show of hands indicated amajority of those present supported Option E. Ms Greco deposes that the councillorspresent at the meeting committed to include Option E in the consultation process.Mr Becker's recollection is different. He says that Councillor Calvert stated that shewould seek advice from Council officers as to whether Option E could be incorporatedas a named option in the formal consultation process that had been opened earlier thatday, not that it would definitely be included.[44] His recollection was that no other councillor or Council officer made anycommitment to include Option E in the consultation process. Mr Becker's recollectionis supported by an email from Councillor Calvert to Ms Greco of 1 August 2017, therelevant passages of which say:Following on from our phone conversation I would just like to confirm that Ihave sought advice on whether the Island Bay Residents Assn/Business Assnproposed "Option E" could be incorporated as a named option in the Council'sformal consultation process in respect of the Island Bay Cycleway, whichopened as at 31 July 2017.At last night's public meeting I indicated at the meeting that I would seewhether this was possible. I have checked with officers today and confirm theadvice from officers is that Council cannot, at this stage of the process,incorporate an additional formal option into the consultation process.However any submitter can provide their comments and or details of analternative option in their submission.[45] Council added a Frequently Asked Questions (FAQs) section to the Councilwebsite which stated that Option E could not be included as an additional formaloption into the consultation process, but that any submitter could provide commentsand details of an alternative option in their submission.[46] Councillor Calvert had also told the meeting of 31 July 2017 that peopleproviding feedback on the proposal were at liberty to suggest another option.[47] By the conclusion of the formal consultation process, the Council had received3,763 formal and 94 informal submissions. The majority of the submitters expresseda preference for Option E.[48] The Council once again referred the feedback material to T+T for analysis.[49] Mr Becker deposes that on 6 September 2017 he was contacted by a staffmember from the Mayor's Office about a "compromise option" that the Mayor hadreceived feedback on from community members. He engaged T+T to assess this.[50] Ms Greco and the Association also approached the Council about an alternativeproposition and, at their request, Mr Becker and a T+T representative met with a groupof eight people (Island Bay residents and business owners) and received a list ofrequirements from them. Mr Becker deposes that list was emailed to CouncillorsCalvert and Eagle on 18 September 2017.[51] Mr Becker produced a report for the City Strategy Committee (CSC) meetingof 20 September 2017. The CSC had replaced the TUDC.[52] His report recommended a cycleway design that, in general terms, merged theresidential section of Option C with the business section of Option D with refinements.The refinements to the business section of Option D incorporated public feedbackaround carparking, provision for bus stops and safety of all users.[53] Mr Becker deposes that, in addition to his report, the councillors were providedwith:(a) the Tonkin+Taylor Report: "The Parade/Island Bay Design OptionRefinement, September 2017";(b) the Morrison Low Report: "Review of Island Bay CyclewayRe-engagement – August 2017";(c) the Research and Evaluation Team Report: "Love the Bay – Deliveringon the Cycleway, 2017. Analysis of Submissions"; and(d) copies of all 3,763 formal and 94 informal submissions (both electronicand hardcopy).Patrick Morgan of Cycling Action Network and Eleanor Meechan of CAW addressedthe meeting, as did Ms Greco.[54] The CSC resolved to request officers, "subject to detailed design andcompletion of safety audit", proceed with a cycleway solution that includes whatMr Becker deposes was a final design "not materially different to the cycleway designoption [he] recommended to Council." He further deposes, "All elements of theamended cycleway design were substantially the same as elements of the designoptions contained in one or more of Options A-D, and had been consulted on." It isthis decision that is challenged in these proceedings.Nature of proceedings[55] These proceedings involve a claim for judicial review. Notwithstanding thevolume of material presented to the Court that related to the merits of the variousdifferent cycleway options and issues such as safety and inconvenience arising fromthose options, these proceedings do not involve any form of merits appeal from theCouncil's decision and it is no part of the Court's function to determine whether theoption decided upon by the Council was the best, the most popular, or the safest option.[56] Territorial local authorities are granted powers under the Local GovernmentAct 2002 (the LGA) and many other statutes. When exercising the powers granted bya statute, a Council is obliged not to misuse those powers. If a Council's powers havebeen misused, this may result in a decision being declared ultra vires and the Courthas a discretion to set it aside.[57] The three main grounds upon which a Court might declare a decision to beinvalid are:(a) illegality (the Council failed to understand the relevant law);(b) irrationality (the decision is so unreasonable or irrational that nosensible Council could have made it); and(c) procedural impropriety (where the Council has failed to follow the rulesof natural justice or other procedural requirements that they wereobliged to follow).[58] Even though there has been an increasing willingness of courts to interfere withdecisions made by Councils since the concept of "unreasonableness" was articulatedin the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation,the Court's rights on a review stop short of a merits appeal.2 This was explained byProfessor Palmer in the following way:3Acceptance that the courts and the legislation do not provide for an open rightto intervene or review a decision of a local authority reflects the constitutionalprinciples of government and the separation of powers. The courts mayintervene only on the grounds of unlawful conduct, or conduct that is sounreasonable or irrational that Parliament would not have intended toauthorise the activity or decision, or serious procedural error. Otherwise, inthe words of one judge: "If the citizens at large are not satisfied with thecouncil's performance, in the time honoured phrase, they have the option,"to throw the rascals out", in due course".The basis of the challenge[59] The Association challenges the decision of the CSC of 20 September 2017 onthe basis that the Council made mistakes/errors of law and it failed to act in accordancewith natural justice.[60] The specific provisions of the LGA which the Association alleges the Councilbreached were:(a) section 77(1) – the relevant parts of which require a Council, in thecourse of a decision-making process, to seek to identify all reasonablypractical options for the achievement of the objective of a decision andto assess the options in terms of their advantages and disadvantages;(b) section 78(1) – which requires a Council, in the course of its decision-making process in relation to a matter, to give consideration to theviews and preferences of persons likely to be affected by, or to have aninterest in, the matter; and(c) section 82(1) – which details what the concept of "consultation" underthe LGA means.2 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).3 Kenneth Palmer Local Authorities Law in New Zealand (Brookers, Wellington, 2012) at [5.12.2](citation omitted).[61] The first amended statement of claim lists seven separate reasons which aresaid to amount to breaches of the three provisions of the LGA. The statement of claimalso alleges that the same reasons mean that the Council breached the common lawconcept of natural justice.[62] It makes a similar claim alleging a breach of s 27(1) of the New Zealand Billof Rights Act (NZBORA). Section 27(1) of NZBORA provides that every person hasthe right to the observance of the principles of natural justice by any tribunal or otherpublic authority which has the power to make a determination in respect of thatperson's rights, obligations, or interests protected or recognised by law.[63] The Association advances a separate claim that is referred to as "Breach ofProcedural Legitimate Expectations". It is claimed that the Association had alegitimate expectation that "[t]he original designs would be amongst the options thatthe Council would specifically consult the community on" and "[t]he Applicant'spreferred design option (in terms that became known as Option E) would be amongstthe options that the Council would specifically consult the community on."[64] A further separate claim is that the decision was unlawful because the Councilfailed to have "meaningful regard" to mandatory relevant considerations, four ofwhich were specific traffic safety matters. A fifth consideration said to have beenignored was the preference of the majority of persons who made submissions duringthe consultation process which began on 31 July 2017. Each of these claims need tobe addressed separately.Breach of Local Government Act consultation obligationsTechnical or peer review of concept designs[65] The first error of law pleaded by the Association is:The Council's decision to begin consultation on 31 July 2017 meant that theconcept designs that it consulted on were unable to undergo any technical orpeer review by the Council or independent contractors prior to being consultedon.[66] There is no express obligation in ss 77(1), 78(1) or 82 that requires a conceptdesign to undergo technical or peer review prior to being consulted upon. Theobligation on the Council is to seek to identify all reasonably practical options for theachievement of the objectives of a decision and to assess the disadvantages andadvantages of these options, along with giving consideration to the views andpreferences of persons likely to be affected.[67] The submission for the Council was that it was never intended that the optionsreleased for formal consultation on 31 July 2017 would undergo technical or peerreview prior to that consultation. Mr Dunn, a senior Transportation Engineer at T+T,and Mr Becker deposed that technical and peer reviews would be undertaken on thepreferred design chosen by the Council.[68] The resolution passed by the Council on 20 September 2017 confirmed that theoption chosen by the Council was "subject to detailed design and completion of safetyaudit".[69] It is also clear from the evidence of Mr Dunn (referred to at [38] above) thatthe four options that the Council set out in its consultation document had already beensubject to significant engineering and safety assessment.[70] The Council submits that the provisions of the Local Government Act 1974,which provide that the Council is the road controlling authority, are not prescriptiveabout the process by which road layout changes are made and notes that the NZTAguidelines are consistent with safety audits occurring at the detailed design phase.[71] Under s 82(1)(c) of the LGA, the obligation is to give the public clearinformation about the "purpose of the consultation and the scope of the decisions tobe taken". The purpose of the consultation was to receive submissions "on the designsby either selecting your preferred design OR ranking one or more of the designs inorder of your preference". It was no purpose of the consultation that the submitterswould make submissions on technical engineering or safety matters. However, ifsubmitters were minded to do so, the Design Report by T+T was publicly available onthe Council's website for them to consult.[72] The designs formally consulted upon by the Council had been prepared by anindependent and qualified expert (T+T) which, as noted in [33] above, had beenprovided with all of the information obtained from the Love the Bay initiative. Therewas no breach of the LGA in the Council's decision to defer detailed engineering andsafety issues until after a preferred option had been determined.Inadequate involvement in determining content of consultation material[73] The second ground advanced by the Association is that:The applicant was not appropriately involved in determining the content ofthe Council consultation material, including the design options that would beincluded in the consultation paper and the timeframe that would be set forconsultation.[74] Mr Anastasiou, for the Association, acknowledges that the Court of Appealdecision in WCC v Minotaur Custodians held that s 78 LGA did not of itself generatean obligation to adopt any particular consultation process or procedure, but submitsthat a consultation process adopted must be a "meaningful one".4[75] Implicit in the Association's submission is the proposition that meaningfulconsultation included an obligation on the Council to involve the Association indetermining the content of the consultation material, including the design options andconsultation timeframe. However, such a submission is contrary to the conclusions ofthe Court of Appeal in WCC v Minotaur and the High Court decision inSave Chamberlain Park Inc v Auckland Council.5 These cases make clear that theCouncil has a wide discretion as to how to conduct the process of consultation.[76] The community engagement process that preceded the formal consultation onthe options had begun many months prior to 31 July 2017. The Association had beenfully, and appropriately, involved in the Love the Bay consultation and informationprocess. All of the information gained from that process had been provided to T+Tand considered when coming up with the options.4 WCC v Minotaur Custodians [2017] NZCA 302, [2017] 3 NZLR 464 at [36].5 Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462.[77] The ascertaining of the community's aspirations or preferences did not obligethe Council to involve the Association (or CAW, or any other community interestgroup) in designing the options for consultation. There is nothing in s 82(1) LGAwhich goes as far as conferring a substantive right on one participant in a communityconsultation exercise to be able to formulate specific options.[78] The proposition advanced by the Association in this regard is similar to oneadvanced by a party engaged in a consultation process in the case of NorthlakeInvestments Ltd v Queenstown Lakes District Council.6 In rejecting the submissionthat the party was able to stop a consultation process to enable it to have input into theCouncil's consultation material, the Court said:7That approach overlooks the fact that it is the Council itself which is thedecision-maker, not the members of the public. Northlake is in a position, aswith all members of the public, to make its own submissions and to challengethe financial assumptions and the merits of the various options.[79] The same principles apply to the claim that the Association had a right to beinvolved in setting the timeframe for consultation.[80] While Mr Anastasiou is correct that the consultation must be meaningful, it isfor the Council, not any of the submitters, to determine what the length of anyparticular component of the consultation process should be. That is a differentquestion to the one of whether or not the formal 14-day consultation period whichcommenced on 31 July 2017 was too short. That issue is dealt with separately below.Inclusion of applicant's preferred design option[81] The Association claims that:The consultation material disseminated by the Council, including theconsultation paper, should have included the original designs and theApplicant's preferred design option (in terms that became known asOption E), but it did not.[82] This submission engages a number of the LGA statutory obligations, including:6 Northlake Investments Ltd v Queenstown Lakes District Council [2014] NZHC 2593.7 At [32].(a) section 77(1) – the obligation to identify all reasonably practicableoptions for the achievement of the objective of a decision;(b) section 78(1) – the obligation to give consideration to the views andpreferences of persons likely to be affected; and(c) section 82(1) – the obligation to provide those affected with reasonableaccess to relevant information in a manner and format that isappropriate to the preferences and needs of the people affected.[83] As set out in [34] above, T+T were specifically instructed to include an optionfor consultation which represented the original cycleway. It did that with Option A.The consultation paper explains why it was not possible to include, as Option A, anoption which was identical to the original cycleway. The relevant passage in theconsultation paper said:Prior to the construction of the Island Bay Cycleway, The Parade south ofMedway Street had kerbside parking, a roadside cycle lane, and traffic lanesseparated by a central flush median. Option A proposes a design that, as closeas safely possible, reflects this. Changes have been made to reflect therequirements of the 2016 post-construction safety audit and peer review, andnewer NZTA and engineering safety guidelines. It is these requirements thatpreclude a return to the exact original design. Changes also extend the cycletreatment along the length north of Medway Street to the Dee Streetroundabout.[84] The FAQs page on the Council's website also explained that the original designno longer met safety and best practice guidelines. The original cycleway also did notextend the full length of the Parade, and Option A proposed to "extend the cycletreatment" north of Medway Street to the northern end of The Parade at Dee Street.[85] The Council submitted that it was entitled to decide that the original cyclewayoption, without modification, was not a viable option and that it needed theenhancements set out in Option A in order to comply with current NZTA requirementsand engineering and safety guidelines.[86] In this regard, the Council was entitled to rely on the expert advice it receivedfrom T+T. In terms of s 77(1)(a) LGA, it cannot be said that the original cyclewaydesign, without the enhancements set out in Option A, was a "reasonably practicableoption" for achieving the Council's objectives in respect of a cycleway.[87] In relation to the claim that the Council had an obligation to include theAssociation's preferred design option (Option E) in their material that went out forconsultation, the design that became known as Option E was put forward at themeeting on 31 July 2017.[88] The formal consultation had already commenced that day. As detailed above,there is nothing in the LGA that entitles a submitter to be able to dictate to a Councilthe substantive content of options put out for consultation.[89] In any event, insofar as Option E is concerned, once the Council became awarethat the Association wanted to have the opportunity for their members to specify it astheir preferred option, it took steps to provide that opportunity.[90] In the FAQs on its website, it explained why Option E was not formally beingconsulted on, but also explained that submitters could nominate Option E as theirpreference. It is clear that the explanation was effective in communicating its messageby virtue of the fact that the majority of the submitters indicated that it was theirpreference.Breach of commitment[91] The Association claimed that:The Council breached the commitment given to the Applicant at the publicmeeting on 31 July 2017 that Option E would be included in Councildisseminated consultation material.[92] As detailed at [44] above, the objective evidence in the form of the email fromCouncillor Calvert to Ms Greco is inconsistent with the Association's claim thatcouncillors present at the meeting committed to include Option E in the consultationprocess.[93] In judicial review proceedings, without cross-examination on affidavitevidence, it is often difficult to resolve disputed questions of fact. However, in thisinstance, the Court is entitled to have regard to the email from Councillor Calvert toMs Greco of 1 August 2017. It is also relevant that, by the time Ms Greco says theCouncil had given a commitment to include Option E in the Council disseminatedconsultation material, the hardcopy form with the Options A-D on it had already beenprinted and the process of consultation commenced.[94] A transcript of the 31 July 2017 meeting has two relevant passages. In relationto Option E, it records Councillor Calvert as saying:If you're going to fill the form in now we don't have it on the list – so all I'mjust trying to do is help to make sure that it is as clear as possible on the form.Now on the submission form under section 2 there is a space for you to writesomething in something like that – so we will go away and tomorrow and seeif we can get it up online – we won't be able to do it on the forms – becausethe forms have already been printed – but we will look at doing that – but wedo need some information obviously from the Residents Association – but ifyou are going to fill in your form tonight and you want to put in thatinformation now – I suggest that you can call it Option E or Option Goal – orwhatever you want to call it[95] Shortly thereafter, the transcript records Ms Greco as saying to the meeting:Okay they are going to try to get it on the online forms – as quickly as possible– they can't get it onto the written forms – so if you're going to do it by writtenform – then you'll need to write it on.[96] None of this is consistent with the "commitment" pleaded in the amendedstatement of claim.[97] Even if Councillor Calvert had made the sort of "commitment" claimed, theproblem would arise that the resolution as to the form of consultation was made by theCSC. An individual councillor cannot lawfully vary or rescind such a decision.Consultation period too short[98] The fifth breach of the provisions of the LGA alleged by the Association is,"The 14-day public consultation period was too short". There is no specific time limitstipulated for consultation in ss 77, 78 or 82 of the LGA. Clause 12 of the Council's"Consolidated Bylaws 2008, Part 7: Traffic", which deals with the consultation periodfor traffic resolutions, stipulates that a proposed resolution shall be on the Council'swebsite at least 14 days before the Council considers it.[99] In support of its claim that the 14-day public consultation period was too short,the Association focuses on the formal consultation period whereas the Council pointsto the fact that this formal consultation period was the culmination of a communityengagement process which had begun some 14 months previously. Whether aparticular consultation process in relation to any Council's decision is sufficient willdepend upon the facts of each case. An important question will be whether or not theprinciples of consultation set out in s 82 LGA have been complied with.[100] In measuring this process against the Council's obligations under s 82(1) LGA,it is not possible to ignore the processes that the Council had engaged in over the prior14 months. That is because those processes are directly relevant to:(a) whether or not the Council has provided persons who may be affectedby, or have an interest in, the decision with reasonable access to relevantinformation;(b) whether such persons have been encouraged to present their views tothe local authority;(c) whether such persons have been given clear information concerning thepurpose of the consultation and the scope of the decisions to be taken;and(d) whether such persons have been provided with a reasonableopportunity to present their views and whether such views have beenreceived by the local authority with an open mind and given dueconsideration.[101] As submitted by Mr Anastasiou, the principles in s 82(1) LGA are, insubstance, "performance standards" against which the Council's consultation is to bemeasured.88 See WCC v Minotaur Custodians, above n 4, at [39].[102] In support of the submission that the 14 days allocated for the formalconsultation was not "meaningful", Mr Anastasiou relied on a decision of the PrivyCouncil where he said it had been held that an 11-day consultation period in relationto a Government decision to expand the boundaries of Port Louis (the capital ofMauritius) was insufficient.9[103] What actually occurred in that case was that the Governor had written to thetown clerk of Port Louis on 2 May 1963 advising of a proposal to alter the existingboundaries of the town and asked for the local authority's response by 13 May. As ithappened, the time for a response was extended until July.[104] The governing legislation did not provide any formalities in relation toconsultation. The Privy Council said:10The local authority must be told what alterations of boundaries are proposed.They must be given a reasonable opportunity to state their views. Therequirement of consultation is never to be treated perfunctorily or as a mereformality. The local authority must know what is proposed: they must begiven a reasonably ample and sufficient opportunity to express their views orto point to problems or difficulties: they must be free to say what they think.[105] Later, the Privy Council observed:11The time within which the views were originally requested does seem to theirLordships to have been remarkably short and particularly so in the absence ofstated reasons which pointed to a measure of urgency. Even, however, if thiswas so it does not alter the fact that the proposal itself was clearly stated andwould at once be readily understood. It might have been unreasonable torefuse a request on the part of the Municipal Council, if it had been made, fora longer period of time within which to express their views. There washowever no such request.[106] The Privy Council held that there had been no breach of the consultationobligation.[107] Analysing the current situation against the criteria set out by the Privy Council,the parties affected by the proposal did know what was proposed and they were given9 Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111.10 At p 1124D.11 At p 1131D.an opportunity to express their views and to point to problems and difficulties. Theywere free to say what they thought.[108] The ultimate measure of whether or not the consultation was meaningful mustbe what the outcome actually was. We know that the Council received 3,763 formaland 94 informal submissions, and that the majority of submitters expressed apreference for Option E.[109] We know that the number of people who made submissions was vastly higherthan the number who had submitted on the original cycleway proposal in 2015.[110] In terms of the total population of Island Bay,12 it is clear that a very highpercentage of residents actually expressed their preference and, notwithstanding thecriticisms of the options on the voting form, the majority were clear that they wantedOption E.[111] In his oral submissions, Mr Anastasiou made the point that the total number ofsubmissions was very large "by local authority standards, and even by centralgovernment standards". Mr Farrar, a polling expert for the Association, also expressedthe view that turnout was high compared to the norm.[112] The inevitable conclusion to be drawn is that the engagement process that theCouncil had embarked upon, over some 14 months prior to 31 July 2017, had beeneffective in providing information about what was proposed and why, and facilitateda very large number of Island Bay residents in being able to express their preferencesto the Council. In those circumstances, it cannot be said that the consultation processwas "perfunctory" or "a mere formality". Neither can there be any suggestion thatIsland Bay residents were not free to say what they thought.[113] When the 14-day formal consultation period is looked at in the context of bothwhat went on over the prior 14-month period, and the actual outcome of theconsultation process itself, it cannot be said to have been unreasonably short.12 The Court was not given a precise population figure although it was referred to as having morethan 7,000 residents and the "electoral suburb" as having "something in the order of 8,000".[114] In relation to the obligation in s 82(1)(e), that the views presented to theCouncil were to be received by the Council with an open mind and be given dueconsideration, the Council referred the information by way of feedback to T+T foranalysis. That analysis produced the T+T report, "The Parade/Island Bay DesignOption Refinement, September 2017". That report, along with the other analyticalmaterial set out in [53] above, along with electronic and hardcopies of all 3,763 formaland 94 informal submissions, were provided to and considered by the CSC.[115] It is important to remember that the obligation in s 82(1)(e) is to give the viewsexpressed by those who will, or may be, affected by a proposed decision "dueconsideration".[116] The LGA does not impose on the Council an obligation to accede to the viewsof a majority of a community or the majority of any part of a community. The caseadvanced for the Association was permeated with the idea that there was an expressor implied obligation on the Council to comply with the preferences of the majority ofthe Island Bay community.[117] In relation to the formal consultation exercise, Mr Anastasiou said in his oralsubmissions: well if you're not going to take, if a territorial authority is not going to takenotice of the majority view, what is the point of going through the exerciseitself?[118] Such a submission is misguided. The formal consultation process commencedon 31 July 2017 was not a referendum. Provided the preferences expressed by theparticipants were given due consideration, the Council was entitled to have regard toother factors. Those other factors included the expert engineering advice it hadreceived as to the viability of reversion to the original cycleway (effectively Option E),as well as to its overall aims in relation to the creation of a network of urban cyclewaysfor Wellington city.[119] In his oral submissions, Mr Anastasiou accepted that the Council was not underan absolute obligation to adopt the preference expressed by the majority of thesubmitters. He acknowledged that he could not use the word "priority" or even"override" in describing the weight that should be given to the submitters' preference.Instead, he said that the Council was obliged to treat the views of the residents assignificant. To the extent that having significant regard to the residents' preferencesis another way of saying their preferences must be given due consideration, I acceptthat submission, but ultimately, they remained only one factor among a number thatthe Council was entitled to take into account.Obligation to consult on the "Mayor's Option"[120] The statement of claim pleads:The Mayor's Option should have been specifically consulted on, given thetiming and circumstances of its formulation and the material differencesbetween it and the design options that the community had been specificallyconsulted on.[121] At the heart of this submission is the assumption that the cycleway proposalthat was ultimately adopted (the "Mayor's Option") was materially different fromanything that had been consulted on.[122] Mr Anastasiou acknowledged that having gone through a consultation processand taken into account the feedback from such a process, the entity undertakingconsultation may modify its original proposal. He relied upon a quote from the Courtof Appeal decision in McInnes v Minister of Transport, where the Court said:13If, as a result of the submission and consultation process, the draft is sotransformed that what the Minister is then considering is really a completelynew rule, the Minister would have to start again. This will sometimes be adifficult question of fact and degree [123] Mr Anastasiou then referred to a number of cases where the Courts had found,on the facts, that there had been such a significant change to the proposal that had beenconsulted upon that a re-consultation was required.[124] Attached as Schedule 3 to Mr Anastasiou's written submissions was adocument headed, "Illustrative particulars of material differences between Mayor'sOption and Options A-D", which set out a list of 15 differences.13 McInnes v Minister of Transport [2001] 3 NZLR 11 at [16].[125] Mr Whittington, counsel for the Council, produced an annotated version of thatSchedule 3 which explained the origin of each of the 15 differences. His summarydemonstrates that eight of the changes were specifically to incorporate aspects ofOption E; four were within the range of specifications given in Options A-D; threewere not different because they were provided in the July 2017 design report; and onewas new.[126] The option that was new related to the use of "rumble strips on the cyclewayand a speed limit for cyclists of 20 km per hour or less". It was submitted that, inmeasuring the materiality of this change as against the purpose and scope of theconsultation, this minor change to a detail of traffic management was "of no moment".[127] Relying on the approach taken by the Courts in cases such as Nelson GamblingTask Force Inc v Nelson City Council, McInnes v Minister of Transport andNew Zealand Pork Industry Board v Director-General of the Ministry for PrimaryIndustries,14 he submitted that there was no obligation to consult further where workundertaken by the decision-maker, subsequent to a consultation, did not involve a"substantially different approach" or "introduce substantially new data or othermaterial".15[128] Mr Whittington referred to Mr Becker's evidence that the design ultimatelyadopted was a hybrid of Options C and D.[129] I accept the analysis undertaken by Mr Whittington of the 15 changes set outin Schedule 3. Given that the majority of submitters had expressed a preference forOption E, those changes which were made to incorporate components of Option Eclearly arose out of the consultation. Likewise, to the extent that the ultimate optionchosen was a hybrid of Options C and D, it arose out of the proposal that had beenconsulted upon.14 Nelson Gambling Task Force Inc v Nelson City Council HC Nelson CIV-2010-442-368,7 September 2011; McInnes v Minister of Transport above n 13, and New Zealand Pork IndustryBoard v Director-General of the Ministry for Primary Industries [2013] NZSC 154, [2014]1 NZLR 477.15 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries,above n 14, at [186].[130] The provisions of the new proposal relating to rumble strips and a speed limitdo not so materially alter the purpose and scope of the consultation as to result in sucha materially different proposal that it was required to be re-consulted upon.Preference of majority not reflected[131] The seventh alleged breach of the LGA was expressed as being:The decision did not reflect the preference of the majority of persons whomade submissions in the consultation process which began on 31 July 2017where this majority expressed a preference for a roadside cycleway whichreverted to the original design or for Option E.[132] I have already explained why nothing in the LGA binds the Council to act inaccordance with the preference expressed by a majority of submitters. I will not repeatthose comments.[133] I also note that, at the time of the formal consultation, the Council made it clearthat what was being undertaken was not a vote or a referendum. In the FAQs on theCouncil's website, the following information appeared:Will the chosen option be determined by how many vote for it?No. This consultation is to help the Council understand the public's views onthe proposed design options. This is why we have asked submitters to eitherselect their preferred option or rank all of the options so the Council can get amore complete picture of public opinion. Councillors will consider theconsultation feedback alongside previous community engagement, NZTA bestpractice guidelines, engineering guidance and council strategies when theymake their decision.[134] The weight accorded the preference expressed by the majority of the IslandBay submitters is a matter for the Council and, provided the requirements ofconsultation as set out in s 82(1) had been complied with (as I have found they have),it is not open to the Court in judicial review proceedings, to interfere in this weighting.Breach of common law natural justice[135] The Association relies on the seven factual allegations that were alleged to bebreaches of the LGA as separately constituting a breach of the common law naturaljustice obligation.[136] The Association submits that there is an extensive common law duty to consultwhich sits alongside and informs the statutory consultation provisions in the LGA.The Association relies on decisions such as Karaka Point Environs Residents Inc vMarlborough District Council16 and Fraser v State Services Commission17 as authorityfor the proposition that the Courts will supplement a statutory consultation procedurewhere it is warranted and where the express provision is insufficient to achieve justice.[137] I accept that there is a common law obligation to consult. The real question iswhether or not compliance with the consultation obligations in the LGA wasinsufficient to achieve justice so that the Court needs to consider the scope of thecommon law obligation.[138] Mr Anastasiou submitted that the common law principles require theconsultation and decision-making process to be fair and transparent.[139] The Karaka Point case involved an allegation that a Council had shifted theboundaries of a rating zone and had failed to consult or adequately articulate the basisupon which the decision had been made.[140] The Court stated that formal compliance with the obligations set out in s 82(1)LGA did not always, or necessarily, discharge the Council's consultation obligations,although the ultimate ground upon which the decision was made was not breach of thecommon law obligations to consult but the fact that the Council had never coherentlyarticulated the reasons for the proposed change.[141] After considering the consultation requirements in the LGA and in theCouncil's Long-Term Plan, the Court concluded:18Against that background I consider there to be a breach of the first of theconsultation obligations contained in s 82(1) of the Act, namely therequirement to provide reasonable access to relevant material in a manner thatis appropriate to the needs of the ratepayer. Put another way, the Councilcould never decide to exercise its discretion [in relation to consultation] by16 Karaka Point Environs Residents Inc v Marlborough District Council [2013] NZHC 2577, [2014]NZAR 244 at [36]-[37].17 Fraser v State Services Commission [1984] 1 NZLR 116.18 Karaka Point Environs Residents Inc v Marlborough District Council, above n 16, at [78].adopting a process that withheld from ratepayers the true reasons underlyinga decision.[142] When assessing whether or not the consultation process was "fair andtransparent", regard must be had to the whole of the consultation process not just the14-day formal consultation period that the Association invited the Court to focus on.Unlike the Karaka Point case, it cannot be said that there was a failure to provideessential information.[143] The Love the Bay process had remedied the issues around engagement that hadbeen identified in the original Morrison Low report. Given the sheer number ofresponses to the formal consultation, it is clear that the attempts to engage the IslandBay community were effective in that a large number of residents felt able to involvethemselves in the consultation process and express their preferences.[144] In support of a submission that the consultation process was unfair,Mr Anastasiou refers to the fact that, throughout the consultation process, CAW metregularly with Council officers regarding cycling matters without the Associationbeing present. However, it was acknowledged by Mr Anastasiou that there was noevidence before the Court as to what might have been discussed at those meetings, andalso that the Council was engaging with CAW in relation to a number of othercycleways throughout Wellington.[145] In those circumstances, it is unsurprising that Council officers might meet withCAW on a regular basis to discuss such matters. However, there is nothing inherentlyunfair about a Council meeting individually with submitters or interested parties. AsMr Becker deposed, Ms Greco, herself, initiated the meeting involving eight residentsand business people with Council staff following the consultation process.[146] The Association has not been able to identify any way in which it could be saidthat the common law obligations of consultation were breached.Breach of NZBORA[147] The statement of claim pleads:The Decision is unlawful because the Council's processes breached s 27(1) ofNZBORA, for one or more of the reasons set out in paragraphs 41.1 to 41.7above.[148] There has been no argument advanced that the provisions of the LGA Part 6,Subpart 1 are inconsistent with s 27(1) of NZBORA.[149] Because the specific allegations of breach of NZBORA are exactly the sameas the breaches alleged in relation to the LGA, given the findings made in relation tothe LGA breaches, it cannot succeed.Breach of procedural legitimate expectations[150] The statement of claim pleads:The Decision is unlawful because the Council's processes breached theApplicant's procedural legitimate expectations that:44.1 The original designs would be amongst the options that the Councilwould specifically consult the community on; and44.2 The Applicant's preferred design option (in terms that became knownas Option E) would be amongst the options that the Council wouldspecifically consult the community on.[151] There is no doubt that procedural legitimate expectations can go beyond legallyenforceable rights and may arise from implied promises.19[152] The Association's case in this regard rests on the claim that clear, express orimplied expectations were given to it as to a process that would be followed. There isconsiderable overlap between this pleading and the claim that the consultationrequirements of the LGA had been breached in relation to what was said to have beena commitment given to the applicant at the public meeting on 31 July 2017 thatOption E would be included in the Council disseminated consultation material.19 See Green v Racing Integrity Unit Limited [2014] NZCA 133, [2014] NZAR 623 at [13]-[14].The CA confirmed that there are three requirements for a successful legitimate expectation claim:a promise or commitment; legitimate or reasonable reliance on the promise or commitment; andthe availability of an appropriate remedy.[153] Given the findings of fact I have made in relation to that claim, any suggestionthat there has been a breach of procedural legitimate expectations in that regard isuntenable.[154] The other aspect of this claim is that "[t]he original designs would be amongstthe options that the Council would specifically consult the community on".[155] In support of this proposition, Mr Anastasiou relied particularly on a resolutionpassed by the TUDC at its 30 June 2016 meeting which said:Agree that any consultation regarding changes to the cycle way in Island Baytake as long as necessary to get a suitable outcome and include a full range ofoptions, including the status quo and original designs.[156] It is submitted that this resolution creates an enforceable legitimate expectationthat meant the Council was bound to put up as options for consultation options thatwere identical to the status quo and the original cycleway, irrespective of the identifiedsafety issues, and whether or not such options were ever going to be practicallyachievable given their non-compliance with NZTA or other regulatory guidelines.[157] The Council's answer to this proposition is that Option A was as near aspracticably possible to the original cycleway design and that it would have beenirresponsible to put up for consultation an unmodified version of the original designknowing that it could not be implemented because it did not comply with NZTA orother guidelines.[158] The Council makes a similar argument in relation to the status quo (kerb-sidecycleway). Their argument was that they could not ignore the safety concerns that hadbeen identified with the status quo, and that they were obliged to include forconsultation a version of the status quo that was modified to have regard to thoseconcerns.[159] Also relevant here is the obligation in s 77(1)(a) LGA to identify all"reasonably practicable outcomes". Neither the status quo nor the original cyclewaycould be said to be reasonably practicable options given the safety concerns and issuesof non-compliance that had been identified with them.[160] In these circumstances, I am satisfied that the options that were consulted uponwere, in substance, options which represented the "status quo and original designs",subject to modifications to assist them to meet the "reasonably practicable" threshold.[161] There is nothing in the resolution of 30 June 2016 that created an enforceablelegitimate expectation that the status quo or original designs had to be consulted uponin precisely their original form, notwithstanding that neither, in that form, met the testof being reasonably practicable. Neither are the second or third limbs of the test for asuccessful claim of legitimate expectation met. There was no legitimate reliance tothe Association's detriment and there is no suitable remedy. No Court is going todirect the Council to go back and consult on options which cannot be implementedbecause of issues to do with safety or regulatory requirements.Mandatory relevant considerations[162] The statement of claim pleads:The Decision is unlawful because the Council failed to have meaningfulregard to the following mandatory relevant considerations:45.1 The treatment of intersections between The Parade and other streets;45.2 The impact on driveways from private properties onto The Parade;45.3 The safety of pedestrians; and45.4 The adverse effects of a constrained carriageway on the movement ofbuses along The Parade;45.5 The preference of the majority of persons who made submissions inthe consultation process which began on 31 July 2017 where thismajority expressed a preference for a roadside cycleway whichreverted to the original design or for Option E.[163] The Association does not submit that the Council had no regard to any of theseconsiderations but that they did not have "meaningful" regard. Essentially, that is anargument that they did not give sufficient weight to any of them.[164] Inviting the Court, on a judicial review application, to assess the weight thatshould be accorded to the variety of factors that a decision-maker is required to haveregard to, is effectively inviting the Court to substitute its own decision on the merits,which is something it is not permitted to do.[165] Addressing, firstly, the four specific traffic engineering issues which is allegedthe Council failed to have "meaningful regard to", none of these matters are expresslyor impliedly identified in the LGA as being mandatory requirements. The concept of"mandatory relevant consideration" was considered by the Court of Appeal inCreedenz Inc v Governor-General, where Cooke J stated:20[I]t is only when the statute expressly or impliedly identifies considerationsrequired to be taken into account by the authority as a matter of legalobligation that the Court holds a decision invalid on the ground now invoked.It is not enough that a consideration is one that may properly be taken intoaccount, nor even that it is one which many people, including the Court itself,would have taken into account if they had to make the decision.[166] Essentially the Association's submission is that the Council did not paysufficient regard to traffic engineering matters relating to the safety of road users atintersections, driveways, footpaths and on the carriageway itself relating to buses.[167] It is clear that the Council engaged T+T, who are specialist engineers, toprepare a design report which addressed traffic safety issues. T+T's design report ofJuly 2017 (available at the time of the formal consultation) addressed a range of safetyissues specifically in the context of the NZTA's Cycle Network Guidance,The Austroads Guide to Traffic Management, Part 4: Network Management, andThe Cycling Aspects of Austroads Guides document.[168] The T+T report also outlines specific design elements that it had incorporatedinto Options A-D in order to actively respond to safety issues such as driveways andintersections.[169] T+T's design report of September 2017, which accompanied itsrecommendation on a cycleway design, also explicitly addressed design and safetyissues of the sort the Association says the Council did not have meaningful regard to.20 Creedenz Inc v Governor-General [1981] 1 NZLR 172 at 183.[170] Given that the Council sought and obtained this type of technical advice onsafety issues and had it available to them, it cannot be said that they failed to havemeaningful regard to it.[171] It is also to be noted that the decision on which cycleway option to pursue wasspecifically subject to further detailed design and safety audits. As at the present date,it is not possible to anticipate the technical changes that might be required as a resultof that process. But, technical engineering matters such as the treatment ofintersections are not matters on which the Council would be expected to consult. It isdifficult to see how the residents of Island Bay (other than the few that might happento be specialist traffic engineers) might be able to make any meaningful contributionon matters of such technical detail.[172] The important thing that consultation was required on was the broad concept.[173] The fifth mandatory relevant consideration which it is said the Council failedto have meaningful regard to was expressed as being:The preference of the majority of persons who made submissions in theconsultation process which began on 31 July 2017 where this majorityexpressed a preference for a roadside cycleway which reverted to the originaldesign or for Option E.[174] This is another way of restating the seventh of the alleged breaches of theprovisions of the LGA.[175] As explained above, the process of consultation was not the equivalent of areferendum that the Council represented would be binding on it. It said that clearly inthe FAQs available during the period of formal consultation.[176] At the end, this argument really comes down to one of weight. The membersof the Association clearly feel that the Council should have given more weight to theirclear preference for a roadside cycleway. There is no doubt, in terms of s 78(1) LGA,that a Council must give consideration to the views and preferences of people likelyto be affected by a decision it makes.[177] It is also clear that the Council did have regard to those views, even to theextent of incorporating aspects of the feedback received during the consultationprocess into what became the final preferred option.[178] Given that there is clear evidence that the Council did consider the preferencesof those who participated in the consultation process, and clearly weighed thosepreferences along with a range of other factors, there is no basis for this Court, on ajudicial review application, to interfere with that assessment process.Outcome[179] Accordingly, the Court having found that the consultation process adopted bythe Council complied with its statutory and common law obligations, the applicationfor judicial review is dismissed.[180] I invite the parties to settle costs by agreement but, failing agreement, therespondent is to file a memorandum of no more than 10 pages in length within 14 daysfrom the date of this decision, with the respondent having 14 days to file a similarlength memorandum in response.Churchman JSolicitors:Meredith Connell. Wellington for RespondentC Anastasiou, Wellington for Applicant