LIVING STREETS AOTEAROA INC v AUCKLAND COUNCIL [2022] NZHC 2500

LIVING STREETS AOTEAROA INC v AUCKLAND COUNCIL [2022] NZHC 2500 [3 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1598[2022] NZHC 2500BETWEEN LIVING STREETS AOTEAROAINCORPORATEDApplicantAND AUCKLAND COUNCILFirst RespondentWAKA KOTAHI NEW ZEALANDTRANSPORT AGENCYSecond RespondentNEURON MOBILITY (NEW ZEALAND )LIMITED, BEAM MOBILITY NEWZEALAND LIMITED, LIMETECHNOLOGY LIMITEDIntervenorsHearing: 19-20 September 2022Appearances: C P Browne and A D Young for ApplicantT D Smith and R L Goss for Second RespondentN J Scampion and J M Alexander for Neuron Mobility (NZ) LtdB S Carruthers for Beam Mobility NZ LtdK M Wilson for Lime Technology LtdJudgment: 3 October 2022JUDGMENT OF LANG J[on application for judicial review]This judgment was delivered by me on 3 October 2022 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Electric scooters, commonly known as e-scooters, are now a familiar sight inmany cities around the world. In Auckland they are predominantly ridden by personswho have hired them from entities licensed by Auckland Council. However, some areridden by persons who have purchased devices for their own use.[2] It is not necessary for e-scooters to be registered or for those who ride them tohold a current driver's licence. This is because e-scooters ceased to be classified asmotor vehicles for registration and licensing purposes in 2018.[3] The applicant, Living Streets Aotearoa Limited (Living Streets), seeks judicialreview of the decision that led to this outcome. It says that the Waka Kotahi NewZealand Transport Agency (Waka Kotahi), the Government agency responsible formaking the decision, erred procedurally in doing so and that its decision should be setaside. In addition, Living Streets also asks the Court to make declarations regardingthe legality of e-scooters currently being used in the city of Auckland.[4] Living Streets also originally challenged the process by which the firstrespondent. Auckland Council, granted licences to the commercial entities who hire e-scooters to the public. However, it discontinued its claim against the Council shortlybefore the trial began.The parties[5] Living Streets is an incorporated society under the Incorporated Societies Act1908 and a charitable entity under the Charities Act 2005. It was established topromote the social and health benefits of pedestrian friendly communities. LivingStreets has been a long-standing advocate for the interests of pedestrians in theAuckland urban environment. It has strong links to the disabled community, and hasparticular concern for people with special mobility needs.[6] Waka Kotahi is a statutory Crown entity established under s 93 of the LandTransport Management Act 2003 (LTMA). Its objective is to undertake its functionsin a way that contributes to an effective, efficient and safe land transport system in thepublic interest.1 It has a wide range of powers under s 95 of the LTMA. These includethe power to contribute to establishing, implementing, operating, delivering,monitoring and enforcing the regulation of the land transport system in New Zealand.2[7] Beam Mobility New Zealand Limited, Lime Technology Limited and NeuronMobility (New Zealand) Limited (the Interveners) are all commercial entities whohold licences to hire out e-scooters in the Auckland urban area. They have beengranted leave to intervene in this proceeding because their interests are potentiallyaffected by the challenge that Living Streets advances in this proceeding.Statutory frameworkLand Transport Act 1998[8] The present proceeding concerns a challenge to a decision made pursuant to s168A(2) of the Land Transport Act 1998 (the LTA) to issue the E-Scooters(Declaration Not to be a Motor Vehicle) Notice 2018 (the Notice).[9] Section 168A of the LTA confers a declaratory power upon the secondrespondent, Waka Kotahi, in respect of vehicles that fall outside of the definition of amotor vehicle. It relevantly provides:168A Agency may declare that vehicle is mobility device or is not motor vehicle(1) If a vehicle or type of vehicle is powered solely by a motor that has amaximum power output not exceeding 1 500 W, the Agency may, by notice,declare that the vehicle or type of vehicle is a mobility device.(2) If a vehicle or type of vehicle is propelled by a motor that has a maximumpower output not exceeding 300 W, the Agency may, by notice, declare thatthe vehicle or type of vehicle is not a motor vehicle.(3) If a vehicle or type of vehicle is propelled by a motor that has a maximumpower output greater than 300 W but not exceeding 600 W, the Agency may,by notice, declare that the vehicle or type of vehicle is not a motor vehicle.(4) If the Agency makes a declaration under subsection (3), the Agency may—(a) impose conditions with respect to—(i) the operation of the vehicle or type of vehicle; and(ii) the equipment required on the vehicle or type of vehicle; and(b) specify those conditions in the notice.(5) A notice under this section is secondary legislation (see Part 3 of theLegislation Act 2019 for publication requirements).1 Land Transport Management Act 2003, s 94.2 Section 95(1)(b).[10] The terms 'motor vehicle' and 'vehicle' are further defined in s 2 of the Act asfollows:motor vehicle—(a) means a vehicle drawn or propelled by mechanical power; and(b) includes a trailer; but(c) does not include—(vii) a vehicle that the Agency has declared under section 168A is not amotor vehicle; orvehicle—(a) means a contrivance equipped with wheels, tracks, or revolving runners onwhich it moves or is moved; and(b) includes a hovercraft, a skateboard, in-line skates, and roller skates; but[11] Whether or not a vehicle is classed as a 'motor vehicle' for the purposes of theAct has a number of consequences. These primarily concern licensing, inspection andregistration. For example, under s 5(1)(a), a person may not drive a motor vehicle ona road without an appropriate current driver licence. Section 242(1) further providesthat a motor vehicle must not be operated on a road unless the motor vehicle—(a) is registered and licensed in accordance with this Part; and(b) has affixed to it and displayed in the manner prescribed by regulationsmade under this Part the registration plates issued for it; and(c) has displayed in the manner prescribed by regulations made under thisPart a current licence issued for it and appropriate for its useunder section 244.[12] The Act also contains various enforcement provisions. For instance, a personwho contravenes s 5(1)(a) by driving a motor vehicle without an appropriate driverlicence is liable under s 31(2) to a fine not exceeding $1,000.[13] It follows that a declaration pursuant to s 168A(2) that a type of vehicle is nota 'motor vehicle' has the effect of exempting the vehicle from various requirementsunder the Act (and the related penalties for failing to comply with those requirements).[14] The Act is not, however, a complete code as regards the regulation of roads andvehicles. Section 152 of the Act confers a power on the Minister of Transport to make'ordinary rules' for a number of purposes, including the safety of and licensing for anyform of transport. These rules may, inter alia, set standards and requirementsconcerning road user behaviour, regulate traffic, and regulate the use of roads.3[15] Ordinary rules made under s 152 are secondary legislation.4 One such exampleof particular relevance to the present proceeding is the Land Transport (Road User)Rule 2004 (the Rule).Land Transport (Road User) Rule 2004[16] One of the stated objectives of the Rule is to include small wheeled vehicleswithin a category called a 'wheeled recreational device' (WRD).5 This is defined as:6(a) a vehicle that is a wheeled conveyance (other than a cycle that has a wheeldiameter exceeding 355 mm) and that is propelled by human power or gravity;and(b) includes a conveyance to which are attached 1 or more auxiliary propulsionmotors that have a combined maximum power output not exceeding 300 W[17] The Rule then introduces various requirements for users of WRD's, aboutwhich the law had previously been largely silent. For example, users must remain asnear as practicable to the edge of the roadway; operate the device in a careful andconsiderate manner, and not at a speed which constitutes a hazard to other footpathusers; and must give way to pedestrians and drivers of mobility devices.7 In addition,a person may stop, stand or park a wheeled recreational device on the footpath if doingso does not unreasonably obstruct any other user of the footpath.8[18] By way of contrast, a person operating a motor vehicle is expressly prohibitedunder the Rule from driving, stopping, standing or parking the vehicle on a footpath.9The distinction between a wheeled recreational device and a motor vehicle therefore3 Land Transport Act 1998, ss 153 and 157.4 Section 152(2).5 Land Transport (Road User) Rule 2004, sch 1 cl 5.6 Land Transport (Road User) Rule 2004, r 1.6.7 Rule 11.1.8 Rule 6.14(3).9 Land Transport (Road User) Rule 2004, rr 2.13 and 6.14(1).remains important, and indeed the Rule makes clear that no duty or requirement itimposes on drivers of motor vehicles applies to persons driving WRD's.10The Notice[19] Waka Kotahi published the Notice after it was approached by commercialentities who wished to obtain licences to hire e-scooters to members of the public (thehire companies). The hire companies were concerned that, under the Rule, e-scootersfell within the definition of a motor vehicle. This meant they would need to beregistered and could only be operated by persons holding a current driver's licence.The hire companies therefore asked Waka Kotahi to exercise its power under s 168Ato declare that e-scooters were not motor vehicles.[20] On 18 September 2018 Waka Kotahi published the Notice in the New ZealandGazette. The Notice reads:E-Scooters (Declaration Not to be Motor Vehicles) Notice 2018Pursuant to section 168A of the Land Transport Act 1998, and pursuant to anauthority delegated to me by the Chief Executive of the New ZealandTransport Agency, I, Brandon Mainwaring, Senior Manager, OperationalPolicy, Planning and Performance, declare an electronic scooter not to be amotor vehicle if all of the following apply:a. The electric scooter is comprised primarily of a footboard, two orthree wheels, and a long steering handle;b. The electric scooter's wheels do not exceed 355mm in diameter;c. The electric scooter has one or more electric auxiliary propulsionmotors; andd. The combined maximum power output of the electric auxiliarypropulsion motors does not exceed 300 Watts.This notice expires on 30 September 2023.Dated at Wellington this 18th day of September 2018.BRANDON MAINWARING, Senior Manager, Operational Police, Planningand Performance, NZ Transport Agency.Explanatory Note10 Land Transport (Road User) Rule 2004, r 1.5(c).This note does not form part of the notice but is intended to indicate its generaleffect.The purpose of this notice is to remove the requirement for scooters designedin the style of traditional children's toys, with a footboard, two or three wheelsand a long steering handle, to be registered as motor vehicles if they are alsofitted with lower powered electronic auxiliary propulsion motors.Grounds of review[21] Living Streets advances three grounds of review. They are:(a) error of law in making the decision to publish the Notice;(b) failure to consult with affected parties; and(c) failure to take into account mandatory considerations.Preliminary issue: amendment of the statement of claim[22] Before dealing with the grounds of review it is necessary to deal with apreliminary issue that was raised for the first time in the written submissions filed onbehalf of Living Streets shortly before the hearing.[23] Living Streets contends that the e-scooters currently operated by theInterveners and other hire companies exceed the maximum power output permitted bythe Rule and the Notice. However, the experts retained by Living Streets and WakaKotahi differ on the meaning of the term "maximum power output". Living Streetssought clarity on the meaning of that term and to this end sought leave to amendparagraph 46 of the statement of claim to enable the Court to deal with this issue.[24] Paragraph 46 currently reads as follows:46. Scooters which are designed to be used primarily under propulsion byan electric motor or which are fitted with an electric motor, or motors,with a combined maximum power output exceeding 300W do notcome within the terms of the Rule definition of wheeled recreationaldevice and within the terms of the Notice.[25] Living Streets sought to amend the paragraph so it would read:46. Scooters which are designed to be used primarily under propulsion byan electric motor or which are fitted with an electric motor, or motors,with a combined maximum power output (meaning the peak powerwhich an e-scooters can deliver in its controlled configuration)exceeding 300W do not come within the terms of the Rule definitionof wheeled recreational device and within the terms of the Notice.(Proposed amendment italicised)[26] Living Streets also sought to amend its prayer for relief so that the declarationthat it sought was in the same terms as the amended paragraph 46.[27] As I advised counsel during the hearing, I do not propose to take up theinvitation to determine the meaning of the term "maximum power output". An issueof this nature would normally be determined in proceedings seeking declaratory reliefrather than an application for judicial review. This is because it does not relate to orarise out of the decision-making process that led to the publication of the Notice.Rather, it relates to events that have allegedly occurred since the Notice was published.[28] Furthermore, the facts giving rise to the issue between the experts are subjectto dispute and it is not possible to resolve this without cross-examination.[29] I therefore decline to grant leave to amend the statement of claim. However,in case it is of assistance, I add these observations. First, this issue will always arisein circumstances that are device specific. The enquiry will be whether a particular e-scooter complies with the limitation on power output imposed by the Notice and theRule. Some devices may comply with the regulatory requirements whilst others maynot. I do not consider the issue can be determined on a generic basis.[30] Secondly, and as a matter of common sense, whether the e-scooter in questioncomplies with the power output limitation will be a question of fact. If it is subject toa controller or governor that prevents it from producing more than the maximumprescribed power output then it will obviously comply with the regulated limits.However, where the device is able to exceed those limits by any means, including theuse of peak power output, it will not comply. I therefore see no relevance in the factthat an e-scooter may only be able to be operated at peak power output for a limitedperiod of time.First ground of review: error of lawThe alleged error[31] The purpose of the Notice was to enable e-scooters to be used on the basis thatthey were WRD's, thereby avoiding the registration and licensing requirementsimposed on owners and users of motor vehicles. This also meant that they could beused on either the roadway or the footpath. Living Streets contends that Waka Kotahierred in law because it mistakenly believed that e-scooters of the type that would beaffected by the Notice were "wheeled recreational devices" (WRD's) as that term isdefined in the Rule.[32] Living Streets contends that Waka Kotahi was fundamentally mistaken in itsbelief because, as defined in the Rule, WRD's must be fitted with one or more electricauxiliary propulsion motors. Living Streets argues that e-scooters of the type to whichthe Notice was to apply do not fall within this description because they are fitted withelectric motors that provide the primary means of propulsion. In other words, theelectric motors are not auxiliary as the Rule requires. It follows that the devices thecommercial entities wished to hire out to the public did not fall within the definitionof WRD's, and Waka Kotahi had no power to make a declaration that they were notmotor vehicles. This prompts Living Streets to ask the Court to make a declarationthat the e-scooters operated by the Interveners do not fall within the description ofWRD's.[33] Living Streets contends the mistake that Waka Kotahi made is analogous to thesituation that arose in DFS New Zealand Ltd v New Zealand Customs Service.11 Inthat case the New Zealand Customs Service (Customs) decided to revoke the abilityof a duty-free retailer to sell goods over the counter in a downtown store to customerswho were not travelling overseas. The retailer acquired those goods overseas, and wasnot required to pay import duties on them until after it had sold the goods through thestore. At the time Customs revoked the retailer's ability to sell goods over the counterboth Customs and the retailer mistakenly believed that the economic impact of therevocation on the retailer would be significantly mitigated by an excise provision11 DFS New Zealand Ltd v New Zealand Customs Service [2013] NZAR 175 (HC).known as "duty drawback". They later discovered the retailer could not use thisprovision because it only applied to goods that were re-exported overseas.[34] Kos J held that, in making the decision to revoke the retailer's ability to sellgoods over the counter, Customs made "a collateral error of law that led to a falseassumption being made as to the economic consequences of the proposed decision".12The error was one of mixed law and fact because error of law led to error of fact.Furthermore, the impact of the error was substantial because it concerned the matterthat Customs was seeking to form a view on.[35] In the present case Waka Kotahi would undoubtedly have been generally awareof the propulsion system used in e-scooters of the type the hire companies intended tomake available to the general public. They are equipped with an electric motor that isengaged when the rider propels the scooter forward by pushing off with the foot in thesame manner as a rider propels a conventional scooter. Thereafter the scooter ispowered in a variety of ways. The motor propels the scooter whilst travelling on flatsurfaces but when travelling downhill the scooter is propelled by both gravity and themotor. Whilst travelling uphill the scooter uses both the motor and foot propulsion.[36] However, in DFS there was no dispute that the decision maker, Customs, wasmistaken as to the law. In the present case Waka Kotahi says it was not mistaken asto the law. It has proceeded on the basis that the term "auxiliary" does not impose arequirement that the motor must be a secondary source of propulsion. Rather, it viewsthe term as meaning "helping" or "supplementary". In this regard the position isdifferent to the manner in which the Rule defines "cycles", because the Rule requiresthese to be primarily powered by muscular energy.[37] I consider arguments run both ways. Waka Kotahi points out that e-scootersare not solely powered by the motor because they require muscular energy to be usedto engage the motor. Muscular energy may also need to be used when the scooterencounters an uphill gradient. Furthermore, although e-scooters are primarilypowered by the electric motor once in motion, there is nothing in the Rule or Notice12 Above n 11, at [45].to impose a requirement that WRD's must be primarily powered by muscular energy.In that sense the position is markedly different to the definition given to cycles.[38] However, I consider it is also arguable that the word "auxiliary" implies thatthe motor must be ancillary or secondary to another form of propulsion. The analogyto be drawn in this context is the auxiliary motor commonly installed in sailboats. Theprimary means of propulsion for a sailboat is likely to be the use of sails. However,the motor enables the boat to be used when there is no wind or in situations where asteady form of propulsion is required. The only alternative forms of propulsionavailable to an e-scooter are gravity, for which a sloping surface is required, and thetype of manual propulsion normally used to propel a conventional scooter. For themost part, however, the motor is the sole means of propulsion.[39] Given the fact that arguments run both ways I am not prepared to hold that inpublishing the Notice Waka Kotahi was clearly influenced by a mistaken belief as tothe meaning of the term "auxiliary". I consider the factual and legal position in thepresent case to be greatly different than that in DFS.[40] I accept that, if the interpretation advanced by Living Streets is correct, somee-scooters currently in use may fall outside the definition contained in the Notice.However, this does not affect the validity of the Notice. It merely reflects the fact thatthe Notice did not achieve the outcome the hire companies hoped to achieve.[41] Furthermore, persons who ride or hire out e-scooters that do not fall within thedefinition of WRD's may be liable to criminal prosecution. Alternatively, they mayface civil proceedings to prevent them from using or hiring out e-scooters on the basisthat they are not WRD's and/or do not fall within the description contained in the Ruleand Notice. Those persons will be directly affected by the meaning to be given to theterm "auxiliary". Living Streets obviously has an interest in that issue but it is notdirectly affected by it. I consider the appropriate forum in which to conclusivelydetermine the meaning of the term is a case where it is directly in issue. For presentpurposes I am not satisfied that Waka Kotahi made an error of law in publishing theNotice.[42] I would not in any event have been prepared to make a declaration that e-scooters of the type operated by the Interveners fall outside the definition of WRD's.In this context I derive some assistance from the approach taken by the Supreme Courtin Shark Experience Ltd v PauaMAC5 Inc.13 In that case, the appellant operated atourism business that offered clients the opportunity to view great white sharks at closequarters from cages lowered into the sea in areas where the sharks were known tocongregate. The sharks would be attracted to the cages through berley and bait thatwas dropped into the water in the vicinity of the cages. Commercial paua divers whorecovered paua from the same areas were concerned that this practice was placingthem in physical danger from the sharks. They contended that the tourism venture hadattracted a greater number of sharks to the area than would normally be the case, andthat the use of bait and berley meant the sharks were becoming more aggressive.[43] The issue before the Supreme Court was whether the practice adopted by theappellant was a criminal offence under s 63A of the Wildlife Act 1953. That sectionmakes it an offence to hunt or kill great white sharks. The definition of "hunt or kill"within that legislation included "pursuing, disturbing, or molesting any wildlife,whether this results in killing or capturing or not".14[44] The Court of Appeal had issued a declaration that shark cage diving was anoffence under the Wildlife Act.15 The Supreme Court held that the activity of sharkcage diving did not amount to hunting or pursuing great white sharks.16 However, ithad not heard full argument as to whether it amounted to "molesting" the sharks anddid not consider it appropriate to decide that issue.17 The Supreme Court also took adifferent view as to the meaning of the word "disturbing" than had the Court of Appeal,and the evidence in the courts below had not been directed to this. It therefore did notconsider it appropriate to make a finding as to whether the activity amounted todisturbing or molesting the sharks.1813 Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111, [2019] 1 NZLR 791.14 Wildlife Act 1953, s 2(1).15 PauaMAC5 Inc v Director-General of Conservation [2018] NZCA 348, [2019] 2 NZLR 1 at [68].16 Above n 13, at [102] and [103].17 At [104].18 At [110].[45] Importantly, however, the Supreme Court went on to make the followingobservations regarding the appropriateness of making a declaration as to whether aparticular activity amounts to a criminal offence:A declaration?[111] A declaration is a discretionary remedy. There is jurisdiction to issuea declaration where it relates to a matter which might be the subject of acriminal prosecution, but it is a discretion which is exercised with extremecaution. This is because the declaration may have the effect of usurping thefunction of the criminal court and, in particular, may usurp the role of the fact-finder in any later criminal prosecution. Although not binding on the criminalcourt, the existence of a declaration risks prejudicing the integrity ofsubsequent criminal proceedings. It is difficult to predict how the existence ofsuch a declaration might play out in the context of a trial. We also cannotdiscount the risk that declaring the activity lawful or unlawful would have aneffect upon future prosecutorial decisions. We consider that theseconsiderations weigh heavily against the issue of a declaration in this case.[112] So too does the second, and related, point, that the declarationconcerns future conduct. Even were we satisfied as to the lawfulness of sharkcage diving as it has been practised in the past, we cannot rule out thepossibility that changes in practice or conduct in the individual case willimpact on the legality of the activity. The facts before the court may notnecessarily be the facts which exist at some future time when shark cagediving takes place.(Footnotes omitted)[46] I consider these observations are equally apt to the circumstances of the presentcase.Second ground of review: failure to consultThe arguments[47] As Waka Kotahi points out, a statutory decision maker is not under anobligation to consult with any other party unless required by statute, common law orthrough legitimate expectation.19 Nor does the wording used in s 168A suggest WakaKotahi was under an obligation to consult with any other person before exercising itspowers under that section. This is not the case with other provisions within the LTA.19 Phillip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at ch 25.4.9.By way of example, s 161 requires the Minister to give notice of any intention to makeany new ordinary rule and to consult with such persons, representative groups,government departments and Crown entities as the Minister considers appropriate.20The Minister is also required to consult with those entities before making anyemergency rules under s 163.21[48] Furthermore, Waka Kotahi had never consulted with third parties in the pastbefore exercising its powers under s 168A. There is therefore no basis for LivingStreets to rely on past practice as leading to any form of obligation or legitimateexpectation that it would consult with Living Streets or the public generally beforepublishing the Notice in 2018. This is to be contrasted to situations in the past where,acting on behalf of the Minister, the New Zealand Transport Agency (the predecessorto Waka Kotahi) has complied with its statutory obligations to consult with prescribedentities before exercising its powers to make ordinary rules under 161 of the LTA.[49] Living Streets nevertheless contends that Waka Kotahi had a duty to consultboth with it and with the general public, including organisations who advocate onbehalf of the disabled, before publishing the Notice. It says Waka Kotahi breachedthis duty by failing to undertake any form of consultation at all. In support of thisargument Living Streets relies on the combined effect of several factors.International obligations[50] Living Streets points out that legislation is to be interpreted having regard toNew Zealand's international obligations and should be read in a manner consistentwith those obligations.22 Furthermore, the principle of consistency may requiredecision makers to exercise discretionary powers consistently with New Zealand'sinternational obligations.23 In other situations decision makers are required to takesuch considerations into account when making decisions.2420 Land Transport Act 1998, s 161(2)(a) and (c).21 Section 163(1).22 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [43].23 Helu v Immigration and Protection Tribunal, above n 22, at [144].24 Above n 22, at [144].[51] Living Streets also points out that the 2006 United Nations Convention on theRights of Persons with Disabilities (the Convention) was designed to promote, protectand ensure the full and equal enjoyment of all human rights and fundamental freedomsby all persons with disabilities, and to promote respect for their inherent dignity. NewZealand ratified the Convention on 25 September 2008 and it has received appellateendorsement in a judicial review context.25[52] The relevant provisions of the Convention for present purposes are Articles 4.3and 9.1, which provide as follows:Article 4.3:In the development and implementation of legislation andpolicies to implement the present Convention, and in otherdecision-making processes concerning issues relating to personswith disabilities, States Parties shall closely consult with, andactively involve persons with disabilities, including children withdisabilities, through their representative organisations.Article 9.1:To enable persons with disabilities to live independently andparticipate fully in all aspects of life, States Parties shall takeappropriate measures to ensure to persons with disabilitiesaccess, on an equal basis with others, to the physicalenvironment, to transportation, to information andcommunications, including information and communicationstechnologies and systems, and to other facilities and servicesopen or provided to the public, both in urban and in rural areas.These measures, which shall include the identification andelimination of obstacles and barriers to accessibility, shall applyto, inter alia:a) Buildings, roads, transportation and other indoor andoutdoor facilities, including schools, housing, medicalfacilities and workplaces;b) Information, communications and other services,including electronic services and emergency services.[53] Living Streets contends that New Zealand's obligations under the Conventionrequired Waka Kotahi to consult with organisations that advocate on behalf of disabledpersons because such persons are most likely to be affected by e-scooters being riddenon the footpath. Disabled persons will also be adversely affected if e-scooters are left25 Chamberlain v Ministry of Health [2018] NZCA 8, [2018] 2 NZLR 771 at [31] and [76].lying on and around footpaths because this may obstruct the path of disabledpedestrians and those who ride on mobility scooters.Legitimate expectation[54] Living Streets also says it had a legitimate expectation that Waka Kotahi wouldconsult with it before publishing the Notice. This arose from statements made byMinisters of Transport on three occasions, confirming that Living Streets would beconsulted before any steps were taken to permit e-scooters to be ridden on footpaths.Common law[55] Finally, Living Streets relies on duties of consultation that may arise atcommon law.Analysis[56] Living Streets relies upon the cumulative effect of its arguments. It alsosuggests Waka Kotahi has taken a technical or unduly narrow approach in respondingto these. However, an argument will only carry weight, whether considered on its ownor with others, where it has merit. A collection of unmeritorious arguments will not,by force of numbers, result in a meritorious argument. It is therefore necessary toconsider Living Streets' arguments individually to assess the weight they should begiven collectively.International obligations[57] The difficulty with the argument for Living Streets under this ground is thatNew Zealand gave effect to its obligations under the Convention by enacting theDisability (United Nations Convention on the Rights of Persons with Disabilities) Act2008 (the Act). The purpose of the Act was to amend this country's enactments(including statutes and regulations) to enable New Zealand to ratify the Convention.The Act did not incorporate art 4(3) into New Zealand domestic law and it did notimpose a general obligation on those exercising statutory powers to do so inaccordance with the principles contained in the Convention. Nor did it amend the LTAgenerally, or s 168A specifically.[58] Furthermore, art 4(3) relates to decision-making processes "concerning issuesrelating to persons with disabilities". I accept the submission for Waka Kotahi that thedecision-making process that led to the Notice being published was not concernedwith issues relating to persons with disabilities. Rather, it was concerned with theregistration and licencing requirements of e-scooters.[59] The approach the courts should take to international obligations in the LTAcontext was considered in Bin Zhang v Police.26 In that case Clifford J held thatinternational obligations imposed by another convention had not been imported intothe LTA because Parliament had only chosen to partially incorporate the conventionin question into domestic law. As a result, the Court found that to read thoseobligations into the LTA would amount to a form of legislation rather thaninterpretation.27[60] I take the same view. I do not accept that Waka Kotahi was required to consultwith any party to give effect to New Zealand's obligations under the Convention.Legitimate expectation[61] Living Streets contends that three letters it received from Ministers of theCrown during 2015 and 2016 led it to have a legitimate expectation that Waka Kotahiwould consult with it before taking any step that would result in e-scooters beingpermitted to travel on footpaths.[62] The first of these is a letter dated 3 November 2015 that Living Streets receivedfrom the Hon Craig Foss, the Associate Minister of Transport at that time. Thisresponded to an earlier letter Living Streets had sent to the Hon Simon Bridges, thethen Minister of Transport. This has not been produced in evidence but it is clear fromthe Associate Minister's response that Living Streets had raised the issue of postaldelivery vehicles travelling on footpaths. The letter from the Associate Ministerstated:Thank you for your letter of 11 October 2015 to Hon Simon Bridges, Ministerof Transport, concerning the use of vehicles on footpaths. Your letter has been26 Bin Zhang v Police [2009] NZAR 217 (HC).27 At [37].referred to me for reply as the matters you raise fall within my portfolioresponsibilities.I am concerned with the safety of all road users, including pedestrians. I agreeit is important that pedestrians feel safe when using footpaths and in particular,when they are sharing them with other users.Transport officials advise me that exemptions can be granted for certainvehicles where the request meets the required conditions or circumstances.This includes the NZ Post mail delivery vehicles you have noted in yourcorrespondence that are being trialled. However, outside of an exemption thelaw currently prevents the use of footpaths by the newly imported vehicle youhave described regardless of what an importer may claim.Officials generally monitor new vehicle types to determine whether there is aneed for legislative or enforcement activity. Any changes to the lawconcerning the vehicles you have described and footpath use that may affectpedestrians would require public consultation. Although transport officialsare not undertaking a formal project concerning vehicle classifications at thistime, Living Streets Aotearoa would be invited to provide a submission on thisissue if there were to be any future changes.(Emphasis added)[63] As Waka Kotahi points out, this letter came from the Associate Minister ofTransport and not Waka Kotahi. Putting that issue to one side, the italicised portionof the letter suggests that the Associate Minister was referring to possible changes tothe Rule rather than use of the power under s 168A to declare that specified vehiclesare not motor vehicles for the purposes of registration. Any change to the Rule wouldobviously require consultation by virtue of s 161 of the LTA.[64] The second letter is dated 15 March 2016 and was received from the HonSimon Bridges, the then Minister of Transport. It reads:It was good to meet with Living Streets Aotearoa and other organisations whopromote walking-friendly communities. Following is my response to the threeissues you have raised.Maintain the current law on who can and who cannot use footpathsThere are no current proposals to change the law on who can and cannot usefootpaths. I will keep Living Streets Aotearoa's interests in mind should thiscurrent situation alter. Any changes to the law concerning low poweredvehicles and footpath use, which may affect pedestrians, would require publicconsultation.[65] The law regarding the use of footpaths is contained in the Rule. I therefore donot consider this letter assists Living Streets to establish a legitimate expectation thatWaka Kotahi would consult with it in the future before exercising its powers under s168A of the LTA.[66] The third letter was also sent by the Hon Simon Bridges and is dated 9 May2016. On this occasion the topic being discussed was a robotic device being trialledby a nationwide pizza chain. The letter stated:Thank you for your letter of 5 April 2016 regarding the potential trial of theDomino's Robotic Unit in New Zealand.The comments I made in my letter to you of 15 March 2016 are still correct.There are no current proposals to change the law on who can and who cannotuse footpaths. Any changes to the law concerning low-powered vehicles andfootpath use, which may affect pedestrians, would require public consultation.I note your concern for the well-being of vulnerable footpath users relating tothe proposed trial of the Domino's Robotic Unit. Discussions with Domino'sabout a potential trial are at a very early stage, and it is not yet clear if theywould be proposing to test on the footpath or road in New Zealand.I can assure you that safety would be a key consideration of any trial. TheNew Zealand Transport Agency would work with Domino's to develop asafety management plan in advance of any trial to ensure the safety of allinvolved. The requirements included in any plan and the stakeholdersinvolved in the trial would depend on the design of the trial.As your organisation has a particular interest in footpath use, Domino's wouldbe required to involve your organisation if the testing were to includesignificant travel on the footpath. Domino's would also likely need to workwith local government to ensure compliance with local bylaws.I would like to reiterate that the Domino's Robotic Unit is currently only beingconsidered as a trial. Trials enable different kinds of emerging and innovationtechnology to be tested in a controlled environment, and socialised with thepublic. In turn, trials also provide the opportunity to the public to providefeedback about the technology and their acceptability of the technology.[67] As in the case of the other two items of correspondence, I consider this letterwas referring to possible changes to the Rule, which governs the use of footpaths. Anychanges to the Rule would obviously require consultation under s 161 but this doesnot create a legitimate expectation that the same would be the case in any exercise ofthe power under s 168A.[68] It follows that, whether viewed individually or collectively, the letters on whichLiving Streets relies do not give rise to a ground for review under this head.Common law[69] At common law a legitimate expectation as to consultation has been recognisedin exceptional circumstances. A case frequently cited in this context is PascoeProperties Ltd v Nelson City Council.28 In that case a local authority had decided toconvert a public carpark into a "pocket park". The construction of the carpark hadinitially been funded through a targeted rate levied on inner city ratepayers and thepublic had been using it as a carpark for more than 30 years. MacKenzie J held thatthis gave rise to a statutory obligation under s 78 of the Local Government Act 2002to undertake public consultation before a decision was made to use the carpark foranother purpose.29 The fact that ratepayers in the inner city had met the cost ofinstalling the carpark also gave rise to a legitimate expectation that they would beconsulted before such a decision was made.30[70] I do not consider the facts in the present case are in any way comparable tothose in Pascoe. Living Streets cannot be viewed as a group so directly affected byWaka Kotahi's decision that they could have a legitimate expectation of beingconsulted by Waka Kotahi in relation to its decision to publish the Notice.[71] This ground of review fails as a result.Failure to take into account mandatory considerationsThe arguments[72] Living Streets contends that, in making the decision, Waka Kotahi failed totake into account the mandatory considerations of footpath safety, how it would ensuree-scooters complied with the requirements imposed by the Rule, and how these limitscould be policed and enforced.28 Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC).29 At [12].30 At [12].[73] Waka Kotahi responds by submitting that it took each of the matters alleged byLiving Streets to be mandatory considerations into account, and that Living Streets'arguments under this ground are impermissible complaints as to the weight placed onthe considerations.Safety[74] Living Streets submits that safety is a key objective of both the LTA and theRule. It contends Waka Kotahi was impliedly required to take safety into accountwhen making a declaration under s 168A, one consequence of which was to allowWRD's to share footpaths with pedestrians.[75] Living Streets says that Waka Kotahi's regard to safety was largely restrictedto reliance on historical local information and statistics that were unsuitable becausethey related to the use of other recreational devices on footpaths or to devices whichhad not been legal prior to the publication of the Notice.[76] Living Streets also submits that proper regard to safety required considerationof a future state of affairs in which e-scooters would be presumptively lawful to useon roads, including footpaths, in the context of substantial ridesharing operations inmajor cities. It also contends that New Zealand's ratification of the Convention meantthat Waka Kotahi had an obligation to consider the safety of disabled pedestrians.[77] Waka Kotahi responds by pointing out that the LTA does not expressly providefor any mandatory considerations to be taken into account when exercising the powerunder s 168A. However, it accepts that one of its objectives under the LTMA is toundertake its functions in a way that contributes to an effective, efficient, and safe landtransport system in New Zealand.31[78] Waka Kotahi also acknowledges that the absence of widespread use of e-scooters in New Zealand in 2018 limited the amount of relevant data it could accessin relation to safety issues. However, it contends that it gave genuine consideration tosuch information as was then available. Consistent with this, Waka Kotahi monitored31 Land Transport Management Act 2003, ss 94 and 95.initial trials of e-scooters in Auckland and Christchurch. It also sought and obtaineddetails of incidents involving e-scooters that resulted in injury. It says that this datadid not indicate any matters of concern.[79] Furthermore, prior to issuing the Notice, Waka Kotahi says that it undertook a'safety review'. This involved consideration of several data points both domestic andinternational, including crash and injury data relating to e-scooters. A similar safetyreview had earlier been carried out in relation to the Rule, as part of which the positionof disabled pedestrians had been expressly considered.[80] Overall, these sources led Waka Kotahi to conclude that e-scooters did notraise any significant safety concerns, including to pedestrians.Compliance[81] Living Streets submits that the limitations imposed in the Rule regardingmaximum power output were clearly intended to restrict the speed and acceleration ofWRD's. This measure was obviously designed to reduce the risk that WRD's wouldpose to the safety of both riders and pedestrians. It contends that the issue of whethere-scooters complied with these regulatory requirements, and whether these could beadequately enforced, were therefore mandatory considerations Waka Kotahi wasrequired to take into account.[82] Living Streets submits that the inquiries carried out by Waka Kotahi indicatedthat no agency or authority intended to enforce compliance with the regulatory limits.It also contends that no agency or authority currently has the necessary equipment totest compliance with those limits, even putting to one side the lack of clarity aroundthe terms "auxiliary" and "maximum power output". It says that field testing of thekind undertaken for the present proceeding has been criticised as inadequate.[83] Waka Kotahi, in response, reiterates that it was not required to reach aconclusion as to whether any particular e-scooters would come within the terms of theNotice. This is because the decision under s 168A was to declare a class of vehiclesnot to be motor vehicles by reference to general characteristics.[84] Waka Kotahi also submits that s 168A does not permit it to create discreteenforcement mechanisms, and that enforcement therefore depends on the generalmechanisms under the LTA and the Rule. In any event, it says that it expresslyconsidered enforcement of the terms of the Notice and consulted with Police on thematter. It also considered whether to appoint enforcement officers as it has a powerto do under the LTA. Ultimately, however, it concluded the Police were best placed toact as the primary means of enforcement.[85] Waka Kotahi further contends there is no evidence to support Living Streets'allegation that Waka Kotahi "knew Police enforcement would not occur". It says thatthe question of enforcement resources or strategy is primarily a matter for Police, asopposed to one that has any bearing on the validity of the Notice.[86] Finally, Waka Kotahi points out that it is open to Living Streets, or to one of itsmembers, to bring a private prosecution against any e-scooter hire company that itbelieves is operating contrary to the Notice or the Rule.AnalysisSafety[87] A mandatory consideration is one that the statute expressly or impliedlyidentifies as being required to take into account.32 Where they are not specified,mandatory considerations may be ascertained from the subject matter of the decisionand the context in which it is made, as well as the scope and objects of relevantlegislation.33[88] The obligation to consider mandatory considerations requires the decision-maker to turn its mind to the matter in a genuine and open manner.34 The weight to be32 CREEDNZ Inc v Governor General [1981] 1 NZLR 172 (CA) at 183.33 Secretary for Justice v Simes [2012] NZCA 459 at [50]; Keam v Minister of Works andDevelopment [1982] 1 NZLR 319 (CA) at 327; and Thames Valley Electric Power Board v NZFPPulp & Paper Ltd [1994] 2 NZLR 641 (CA) at 651-652.34 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1NZLR 544 at 551 (CA); and Attorney-General v Refugee Council of New Zealand Inc [2003] 2NZLR 577 at 608.given to a mandatory consideration, however, is ultimately a matter for the decision-maker.35[89] As Waka Kotahi submits, s 168A does not expressly provide for any mandatoryconsiderations. It does not appear to be in dispute, however, that safety is anoverarching objective and purpose of the land transport system and the governinglegislation in this area. Furthermore, as noted at the outset, a decision under s 168Ato declare that a type of vehicle is not a motor vehicle has the effect of exempting thatvehicle from licensing and registration requirements, many of which are in place forreasons of safety. It also means that such vehicles are permitted to be used on thefootpath.[90] I therefore accept that safety was a mandatory consideration Waka Kotahi wasrequired to take into account in making the decision to issue the Notice. I am alsosatisfied from the information before me, however, that Waka Kotahi did genuinelyturn its mind to that question. Furthermore, it reached a conclusion that publicationof the Notice would not impact adversely on the safety of road users or pedestrians.[91] Living Streets' real argument is that Waka Kotahi's efforts were insufficient.However, it is not the role of the Court in a judicial review context to undertake anassessment of the merits of the safety data on which Waka Kotahi made its decision.Nor has Living Streets advanced an argument that the decision was unreasonable. Thefocus must therefore be on the process by which the decision was made. Given myconclusion that Waka Kotahi did consider safety as a mandatory consideration, I findno error in this respect.[92] I also note the difficulty Waka Kotahi would have faced in speculating as tothe likely future impact of e-scooters on pedestrians following publication of theNotice. Whilst some guidance could have been gathered from the experienceoverseas, and to some extent this was taken into account, Waka Kotahi cannot becriticised for failing to take into account data that did not yet exist in New Zealand.35 Phillip A Joseph, above n 19, at ch 23.2.3(5).Compliance[93] In publishing the Notice I accept that Waka Kotahi was not concerned with theissue of whether particular e-scooters complied with the requirements imposed by theNotice. It was entitled to proceed on the basis that the hire companies and personswho purchased e-scooters for their own use were responsible in the first instance forensuring their devices complied with the regulatory requirements. It follows that theissue of whether particular e-scooters complied with these was not a mandatoryconsideration Waka Kotahi was required to take into account when making thedecision.[94] I also accept, however, that the ability to enforce the regulatory requirementswas a mandatory consideration as part of the broader consideration of safety. Withoutthis, there would be no means of ensuring that those who hired and used e-scooterswere complying with those requirements.[95] Waka Kotahi obviously turned its mind to the issue of compliance to the extentthat it engaged with the police on that issue. However, this alerted it to the fact thatthe police were only interested in rider behaviour. They did not intend to play any rolein determining whether e-scooters met the regulatory requirements.[96] It appears that Waka Kotahi did not consider the wider issue of how it wasgoing to ensure that the power output limitation imposed by the Rule and the Noticewas being observed. This was important because it impacts directly on safety issues,both for riders of e-scooters and those in the vicinity. It seems that Waka Kotahi hadnot established a method by which it could reliably measure the maximum poweroutput of e-scooters before it published the Notice, and debates still continue as to howthis is best achieved.[97] I consider this was an error because Waka Kotahi, or some other agency,needed to have the ability to determine whether individual e-scooters complied withthe regulatory requirements should this be raised as an issue. However, failure to takeinto account a mandatory consideration does not automatically result in a decisionbeing set aside. Rather, the applicant must show there is a realistic prospect that themandatory consideration(s), if taken into account, would have led to a differentconclusion.36 In other words, the consequences of a failure to take the mandatoryconsideration into account must have been material. In the present case, however,there is nothing in the evidence to suggest Waka Kotahi's decision to publish theNotice may have been different if it had taken further steps to investigate andimplement a means by which to test compliance by individual devices with theregulatory requirements. Rather, those steps are likely to have bolstered its decisionto publish the Notice.[98] This ground of review must therefore fail.Relief[99] It is obviously not strictly necessary for me to deal with the issue of relief givenmy conclusion that Waka Kotahi committed no error of law or procedure that affectedthe validity of the Notice. Nevertheless, in case I am wrong in my conclusions onthose issues, I propose to add some brief comments regarding the issue of relief.[100] Several factors persuade me that, had it been necessary to consider the issue ofrelief, I would not have been prepared to set Waka Kotahi's decision aside. The firstis the delay that has occurred in filing the present proceeding. Living Streets did notfile the proceeding until 5 August 2021. That was nearly three years after Waka Kotahipublished the Notice. Some allowance must be made for the fact that Living Streetsis an advocacy organisation of limited means. Living Streets also explains that itpursued other avenues before filing the present proceeding. Nevertheless, a delay ofthe magnitude that occurred here is significant by any standard.[101] Of itself, delay may not be sufficient to dissuade the Court from granting relief.That is less likely to be the case, however, where the delay has caused prejudice toothers. In the present case numerous parties have altered their positions significantlyon the understanding that the Notice was valid. These include the hire companies,who have invested considerable capital in setting up their ventures and have engagedemployees to administer their businesses. It also includes those who have purchasede-scooters for their own use.36 Secretary for Justice v Simes, above n 33, at [64].[102] Living Streets submits that the hire companies must always have known theywere at risk of having their ability to operate curtailed at any stage by an administrativedecision. I do not accept this submission. In the absence of any advance notice of thepresent application I consider the hire companies were entitled to assume they wouldbe able to operate their businesses for at least the initial five year period during whichthe Notice was to remain in force.[103] This leads to the next point, which relates to the fact that the Notice will expirein September 2023. It seems likely that Waka Kotahi decided the Notice was initiallyto remain in force for five years so it could review the position at the expiration of thatperiod in light of information then available. As will already be apparent,comparatively little was known about the likely effect of e-scooters on the streets andfootpaths of Auckland when the Notice was published in September 2018. WakaKotahi and Auckland Council could reasonably expect to be able to gather a muchgreater amount of information about this issue once the Notice had been in force forfive years.[104] It can therefore be anticipated that Waka Kotahi and Auckland Council arecurrently assembling information to enable them to make a decision next yearregarding the future use of e-scooters in the city. Given the issues raised in thisproceeding it is likely that this will include the implementation of a system to enableindividual devices to be tested to ensure compliance with the limitations imposed bythe Notice.[105] These decisions are very important, and they should obviously be made on aconsidered and fully informed basis. An order quashing the Notice with immediateeffect is likely to force Waka Kotahi to make its decision 12 months earlier thanplanned. This may well detract from its ability to make a decision on a considered andfully informed basis. I do not consider that this outcome would be in the publicinterest.Result[106] The application for judicial review is dismissed.Costs[107] Waka Kotahi has been the successful party and would ordinarily be entitled toan award of costs on a Category 2B basis together with disbursements as fixed by theRegistrar. If the parties cannot reach agreement on costs they have leave to file andserve memoranda of up to five pages in length on that issue. I will then determinecosts on the papers.Lang J