SAVE THE QUEEN STREET SOCIETY INC v AUCKLAND COUNCIL [2021] NZHC 1005

SAVE THE QUEEN STREET SOCIETY INC v AUCKLAND COUNCIL [2021] NZHC 1005 [6 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000726[2021] NZHC 1005UNDER the Judicial Review Procedure Act 2019BETWEEN SAVE THE QUEEN STREET SOCIETYINCORPORATEDApplicantAND AUCKLAND COUNCILFirst RespondentAUCKLAND TRANSPORTSecond RespondentHearing: 5 May 2021Appearances: S Lowery and A M Cameron for ApplicantP M S McNamara and C Ryan for RespondentsJudgment: 6 May 2021JUDGMENT OF VENNING J[Application for interim relief]This judgment was delivered by me on 6 May 2021 at 4.00pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Russell McVeagh, AucklandSimpson Grierson, AucklandCounsel: S M Lowery/A M Cameron AucklandIntroduction[1] Both parties to this proceeding agree that Queen Street should be reshaped toprioritise pedestrian use of the city centre. Both also agree that the existing EmergencyWorks on Queen Street should be removed. Where they differ is how and when thoseobjectives are to be achieved.[2] Save The Queen Street Society Incorporated (the Society) seeks judicial reviewof decisions of the Auckland Council (the Council) and Auckland Transport (AT)affecting the reshaping of Queen Street.1[3] The particular decisions challenged are:(a) the Council's decision of 18 June 2020 to confirm that EmergencyWorks carried out on Queen Street during the Covid-19 pandemicwould be retained and used as a basis for the Queen Street Pilot (thePilot), which would be brought forward;(b) AT's resolution of 26 June 2020 authorising the Emergency Works andtheir retention for the Pilot;(together the June 2020 decision); and(c) the Council's decision announced on 16 April 2021 to replace theEmergency Works in the section of Queen Street between Shortlandand Customs Street East with further non-permanent works (the April2021 decision).[4] The Society seeks interim relief under s 15 of the Judicial Review ProcedureAct 2016 (the Act) pending the hearing of its substantive proceedings. In particular,it seeks orders preventing the Council from undertaking any physical works to:1 In this judgment references to "the Council" include references to AT unless it is necessary to referseparately to AT.(a) substitute, exchange, build upon or add to the temporary worksinstalled in Queen Street in April and May 2020 in response to Covid-19, which have since been used for the Queen Street Access forEveryone Pilot;(b) install or construct the works between Shortland Street and CustomsStreet East announced by the Council on 16 April 2021.Background[5] The Council's Auckland Plan 2050 states that the city centre will continue tobe the focus of Auckland business, tourism, educational, cultural and civic activities.The City Centre Master Plan (CCMP) has Queen Street at its heart. The CCMP asrefreshed in 2020 included the concept of Access for Everyone (A4E). A4E wasintended to reshape the city centre streets so that more street space was given to peoplewalking, cycling and using public transport rather than non-essential vehicles, (suchas private cars and motor bikes). The overall thrust of A4E is to prioritise pedestrianover vehicle use in the city centre.[6] The Pilot is part of the A4E programme specifically focussed on the QueenStreet valley. The aims of the Pilot are to:(a) limit motorised through traffic on Queen Street;(b) prioritise access to city centre destinations;(c) create new public spaces;(d) improve access for servicing freight and delivery;(e) favour public transport, walking and cycling.[7] Both the CCMP and the Pilot are formal Council policy. The refreshed 2020CCMP was adopted by the Council's planning committee on 5 March 2020. Thatdecision is not challenged by the Society.[8] In April and May 2020, in response to the Covid-19 pandemic, temporarychanges were made to Queen Street, primarily to support physical distancing (theEmergency Works). The Emergency Works reduced vehicle lanes on Queen Street byclosing the two kerbside lanes to traffic and designating them as additional footpathspace, moved bus stops into the carriageway, and reduced loading zone spaces andshort-term parking. The Emergency Works were initially supported by the use ofcones and multi-coloured road marking. The cones were later replaced with "hitsticks".[9] The Pilot was scheduled to commence with the new phase of the City Rail Link(CRL) planned for March 2021. However, given the Emergency Works were alreadyin place, in June 2020 the Council made the decision to bring forward the initial worksby several months and to commence the Pilot in July 2020.[10] Following the initiation of the Pilot limited refinements were made to theEmergency Works. The refinements included: road paint, bus platforms, planters,footpath markings and concrete separators. Further operational and amenity changeswere made after December 2020.[11] The Council now proposes to carry out further work to advance the Pilot onQueen Street in four stages. The first stage involves work in Queen Street betweenShortland Street and Customs Street East (including the Fort Street intersection) (theStage 1 works).[12] On 16 April 2021 the Council publicly announced the Stage 1 works. TheCouncil intends that the Stage 1 works will trial changes to the streetscape of QueenStreet to inform future stages of improvements based on feedback. The Council refersto this process as "tactical urbanisation" – it involves trying through doing. Thechanges are said to be of high quality but will not be permanent or unchangeable.[13] The main features of the Stage 1 works are:• extension of currently formed footpaths, including composite decking;• additional street furniture;• creating a "pocket park" at the corner of Queen Street and Fort Street;• provision of native planting in planters;• infilling some existing parking bays using stone pavers; and• approved signage and line marking.The Applicant[14] The Society was incorporated on 21 October 2020. Its secretary, AndrewKrukziener has provided a substantive affidavit in support of its application. TheSociety has 295 members. It was formed because of concern over the alterations toQueen Street's layout implemented by the Emergency Works in April and May 2020.Apart from Mr Krukziener, the committee members include Viv Beck, ChiefExecutive of the Heart of the City (HOTC) (an association of businesses in the centralcity), and a number of other professionals and business owners.[15] Apart from the affidavits by Mr Krukziener and Ms Beck in support of theapplication, the Society has filed affidavits from Graeme McIndoe, an architect andurban designer, Brett Harries, a professional engineer with a particular expertise intransportation and Todd Eglinton, a market researcher.[16] In addition, a number of affidavits have been filed by franchise and businessowners, taxi drivers, and a hotel operator. The overwhelming evidence of thecommercial business owners and operators is directed at the impact on their businessesof the Emergency Works in particular, and their concern that the proposed Stage 1works will maintain that disruption to their business which primarily arises from thelack of functionality of Queen Street now that it has been reduced to two lanes. Theconcern of businesses at the current state of Queen Street is underlined by Ms Beck'sinvolvement as a committee member of the Society.The Applicant's case[17] The applicant says there was no public consultation before the June 2020decision was made and no effective consultation before the April 2021 decision. MrKrukziener and Ms Beck's evidence addresses the issue of their dealings with theCouncil in relation to the issue of consultation in relation to both the June 2020 andApril 2021 decisions (on their case, the lack of proper consultation).[18] The applicant says there have been no substantial changes to the EmergencyWorks since July 2020 and they effectively remain in place. They have impacted onthe aesthetics and functionality of Queen Street. The applicant says the EmergencyWorks also pose safety hazards because of the inconsistent road furniture and streetmarkings. They have reduced access for delivery drivers, emergency vehicles, hotelguests and taxi and ride sharers. Mr Harries has confirmed the reduced trafficfunctionality of Queen Street. Mr Krukziener says the Emergency Works have spoiledQueen Street's appearance. They use low quality and makeshift materials. The overalleffect of the Emergency Works has been to create a negative public perception whichhas impacted on businesses situated on Queen Street.[19] The applicant takes particular issue with the Council's April 2021 decision toreplace the Emergency Works with the Stage 1 works between Shortland Street andCustoms Street East. The applicant is concerned that work will entrench what it seesas the existing failings. It says there is no indication of a comprehensive long-termdevelopment plan for Queen Street. Further, such Council documentation as isavailable suggests the Council does not have funds allocated to undertake acomprehensive redevelopment of Queen Street.[20] In its substantive claim the applicant alleges the June 2020 and April 2021decisions are unlawful, ignore mandatory relevant considerations, breach substantivelegitimate expectation, breach the right to natural justice, fail to follow prescribedconsultation requirements, are not proportionate and are unreasonable in all thecircumstances. It seeks orders:(a) declaring the decisions unauthorised or invalid;(b) setting aside the decisions;(c) other relief as may be appropriate;(d) costs.Interim relief under the Judicial Review Procedure Act 2016[21] As noted, the applicant seeks interim relief pending the determination of itssubstantive claim. The interim relief is sought under s 15 of the Act. As relevant, s 15provides:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:[22] The applicant must satisfy the Court that it is necessary for the interim ordersto be made to preserve its position pending the hearing of its substantive claim.2[23] If the applicant satisfies the Court that it has a position it is necessary topreserve pending the hearing of its substantive proceeding, then the Court has adiscretion to grant the interim relief sought.[24] When considering whether to exercise that discretion the Court will considerall the circumstances of the case, including the apparent strengths and weaknesses ofthe claim, the competing advantages and detriments to the parties, the status quo, thepublic and private repercussions, and the overall interests of justice.32 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA); and Easton vWellington City Council [2010] NZSC 10.3 Carlton & United Breweries Ltd v Minister of Customs, above n 2; and ENZA Ltd v Apple andPear Export Permits Committee HC Wellington CP 266/00, 18 December 2000.The threshold test[25] Before the issue of whether the Court should exercise its discretion arises, theapplicant must satisfy the threshold test that it has a position it is necessary to preserve.That requires consideration of the existing circumstances, the substantive relief soughtand the consequences of not making an interim order. The applicant must identify theposition it seeks to preserve.[26] As Henry J noted (when discussing the predecessor to s15) in Woodhouse vAuckland City Council:4The clear purpose of s 8 is to give a right of protection on an interim basis toan applicant who may otherwise be unfairly prejudiced by reason of the delayin obtaining a final hearing. The lapse of time may in some circumstancesrender the practical effect of final relief of little or no value; it may put anapplicant in a disadvantaged position which it is later found to have beenwrong; or it may result in the right to the final relief sought having expiredaltogether. Hence the need for an interim preservation of position. It istherefore important to look at what is being sought by way of substantiverelief, to see whether there is a position which should be preserved and whichis the subject of or at least relevant in a significant way to the substantiveapplication.[27] The interim orders sought by the applicant would prevent the Council fromproceeding with the Stage 1 work or from doing anything in relation to the EmergencyWorks in Queen Street generally (other than remove them). A principal problem forthe applicant is that such orders would not address a major concern of its members,which is the current compromised state of Queen Street and its reduced trafficfunctionality because of the Emergency Works. The interim orders sought wouldprevent the Stage 1 work and any further works from replacing the existing EmergencyWorks. It would leave the situation as it is at present with the Emergency Works insitu.[28] From the evidence of most of the applicant's deponents, their concerns wouldonly be met by removal of the Emergency Works. So, unless the interim orders wentfurther and directed the Council to remove the Emergency Works and to reinstate the4 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).dual carriageways, what the applicant (or at least several of its deponents) seek willnot be achieved.[29] While the interim orders as drafted would permit the Council to remove theEmergency Works, there is no suggestion the Council has any intention to remove theEmergency Works unless it is as part of the Stage 1 works (or, for the balance of QueenStreet, as part of a later work programme). In an internal memorandum of 23 March2021 the Head of City Centre Development suggests that the Council will seek todeliver "focused interventions" by 30 June 2021 and in parallel, will take steps toassess and remove unnecessary Emergency Works.[30] There is no basis or jurisdiction for the Court to make a mandatory orderrequiring the Council to remove the Emergency Works on the current application.Such an order is not sought and, in any event s 15 does not provide for such relief.The purpose of s 15 is to preserve the position of an applicant, not to improve it.[31] The relief sought in the substantive proceedings is declaratory. The applicantseeks declarations that the June 2020 and April 2021 decisions are unlawful and anorder setting them aside. Even if the applicant were to succeed with its substantiveclaim, the issues relating to the future shape of Queen Street and how the objectivesof the CCMP are to be met would remain.[32] The applicant recognises that but argues that there should be full consultationbefore decisions are made on how best to achieve the objectives of the CCMPincluding the aim of the pedestrianisation of Queen Street. It argues effectiveconsultation should be required rather than allowing the Council to make changes "viathe back door" by the impugned decisions. But if the applicant succeeds in itssubstantive case, the installation of the Stage 1 works will not prevent the applicantachieving its goal of full consultation regarding the future development of QueenStreet. The Stage 1 works are reversible.[33] Mr Lowery suggested that there was a spectrum applying to decisions andactions that are reversible. If so, Mr Potter's evidence suggests the Stage 1 work to bewell towards the reversible end rather than the irreversible end of the spectrum. MrPotter is the Council's Director of Infrastructure and Environmental Services.[34] The applicant says the Stage 1 work will create "facts on the ground" that mayundermine the opportunity for openminded consultation in the future. The applicantargues that the interim orders are reasonably necessary to preserve its position becausethe new works in Stage 1 seek to entrench the impugned decisions. The applicant saysthat there would be a real prospect that on any future challenge the Court wouldconclude the balance of convenience falls in favour of the Council due to the expenseof removing the new works.[35] To support that submission Mr Lowery referred to the decision of Smith vTaupo District Council.5 The Council had granted resource consent to landowners tobuild a house near Lake Taupo. The consent was granted on a non-notified basis. Theplaintiffs sought judicial review of the non-notification decision and an ordercancelling the resource consent. Pending the determination of the judicial reviewproceeding they applied for an interim order preventing the landowners from takingany steps to implement the resource consent. Nicholson J granted the application forinterim relief. While the landowners were prepared to give an undertaking they wouldnot proceed any further in implementing the consent other than carrying out theearthworks authorised by it, the Judge considered that it was reasonably necessary tomake the order as the earthworks were a key part of the proposal and if they werecarried out before the substantive issue was decided their presence may have had asignificant psychological effect in achieving a favourable decision for the landowners.[36] I agree with Mr McNamara that the Smith decision is distinguishable from thepresent. The interim order in that case preserved the position and prevented theearthworks. In this case the Emergency Works already exist. It is also relevant thatthe case involved the actions of a private individual. The Council in the present caseis on notice of the applicant's position and its opposition to the Stage 1 work. MrPotter has confirmed in his affidavit that the Stage 1 work is essentially temporary andcan be undone. Further, as part of the process of "tactical urbanisation" it is expected5 Smith v Taupo District Council [2002] NZRMA 59.that some changes or refinements will be made as the changes are tested. The Councilaccepts that the changes under Stage 1 may not be permanent. There is no reason tosuggest that if the applicant succeeds in its substantive case and the Council is requiredto reconsider the position that it will not do so openly and in accordance with itsobligations under the Local Government Act 2002.[37] The present case is quite different from other cases where restraining orders ordeclarations were granted in circumstances where, if the interim order had not beenmade the position would have been irreversible: Norman v Tūpuna Maunga o TāmakiMakaurau Authority and Manawatu Polytechnic v Attorney-General.6[38] The applicant also says the situation will deteriorate further in mid-2021 whena large number of buses will be diverted down Queen Street due to the CRLconstruction. Before the position is entrenched it is appropriate to pause and assesswhether the respondents' decisions are lawful. However, as noted, that situation iscaused by the existing Emergency Works. Even if the interim orders were grantedthey would not affect the existence of the Emergency Works.[39] In his submission in reply Mr Lowery suggested that the position to bepreserved was the prevention of harm to real people whose businesses were sufferingas a result of the Emergency Works. The evidence of the business owners is largelydirected at the issues caused by the reduction of the carriageway from four lanes totwo lanes, with only one lane in either direction.[40] The impact on businesses is confirmed by a physical survey of businessescarried out by Ms Bartlett, an office administrator. She noted that of the 345 stores atstreet level, 90 of them (26 per cent) were closed, empty or for lease or sale.[41] I do not discount the difficulties that a number of businesspeople in the centralcity, particularly the deponents before the Court on this application, are experiencing.But part of the reason for those difficulties will be the Covid pandemic with theattendant cessation of overseas tourists, a significant reduction in the number of hotel6 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2021] NZHC 201; and ManawatuPolytechnic v Attorney-General CP324/97, 15 December 1997.guests and the change in the working environment and working habits of inner-cityworkers. It will not entirely be because of the Emergency Works.[42] There is force in Mr McNamara's submission that the interim relief iscounterintuitive. Even if the interim orders were granted the Emergency Works willstay. The four-lane carriageway will not be reinstated. The existing unsightlyEmergency Works will remain between Shortland Street and Customs Street East.Even the applicants accept that the Stage 1 works will be a "cosmetic" improvementover the existing Emergency Works.[43] The purpose of s 15 is to preserve an applicant's position pending thedetermination of the substantive proceedings. The position the applicants want toachieve is to have the Emergency Works removed and to reinstate Queen Street backas it was before the Emergency Works. That position does not exist.[44] For the above reasons, the applicants fail to satisfy the Court that they have aposition that it is necessary to preserve pending final determination of the substantiveapplication.Discretion[45] In the event I am wrong in concluding that the applicants do not have a positionthat it is necessary to preserve I address the discretionary considerations.Merits of the case[46] The applicant submits its case is robust. Mr McNamara agreed that for presentpurposes the Council was prepared to accept the applicant's case could not be said tobe without merit. I accept the applicant has an arguable case, particularly concerningthe issue of consultation. I regard this factor as evenly balanced.The statutory power in issue[47] While the decisions were made by the Council as part of its statutory function,the applicant submits the impugned decisions are not those traditionally associatedwith high policy content such as the exercise of statutory powers to set rates or toimpose taxation. Further, AT is required to act independently of any political mandate.[48] Mr McNamara submitted that there is a clear public interest in the Councilbeing able to carry out its statutory and democratic role and deliver on policies. Thereis the public support for the policy objective of reducing through traffic on QueenStreet and giving greater priority to pedestrians. That reflects the CCMP, which wasadopted after extensive community engagement and feedback.[49] I accept that this consideration favours the Council. The proposed Stage 1works are a practical manifestation of the Council's exercise of its statutory obligationsunder the Local Government Act. In implementing the Pilot the Council is acting topromote the social, economic, environmental and cultural wellbeing of the communityit serves.7Public and private repercussions of granting relief[50] The Council has estimated the costs of the new Stage 1 works at $1.1 million.Mr Lowery submitted that if the works are installed and the applicant succeeds in itssubstantive case they will likely need to be removed. That will be a waste of publicfunds. Against that, Mr Potter has said suggested that a number of the enhancementsare temporary in themselves or are reusable so could be used elsewhere.[51] Mr McNamara made the point that the Council has entered a contract with acontractor for the Stage 1 work. The Council will be subject to extension penaltiesand potentially damages if the contract is cancelled. Against that, Mr Lowery notedthat as long ago as 23 September 2020 the Council was aware that the Society hadbeen established and that legal challenges were anticipated. The Council entered thecontract knowing that there would be opposition to the new Stage 1 work.[52] Mr Potter said that the Council has obtained funding from NZTA but only onthe basis that the funding must be applied this year, by 30 June 2021. Mr Lowerysubmitted that it was speculative to suggest the funding would be lost if Stage 1 was7 Local Government Act 2002, ss 10 and 11.not progressed by then. The funding agreement does contain a clause requiring thefunding to be applied this year. I accept there is a potential for the funding from NZTAto be lost if the works are not implemented by 30 June this year.[53] The risk of facing a damages claim from the contractor and possibly losing theNZTA funding support the Council's opposition to the interim orders.Third party interests[54] There is then the position of the contractor. The contractor's position isprotected to the extent the contract has penalty clauses for extensions. If the Councildoes not give the go-ahead for the works to commence within three months and thenfails to respond to a one month notice from the contractor, the contractor would beentitled to cancel and to seek damages. I do not consider the position of the contractorto be a particularly relevant factor.8Public interest[55] Various surveys have been carried out to obtain views of the public, or at leastthe views of certain sectors of the public. Mr Potter advises that public feedback onthe CCMP in 2019 showed 82 per cent of submitters supported A4E. July 2020research into attitudes to the Queen Street Pilot programme found 73 per cent ofrespondents supported pedestrian friendly areas in Auckland City. Sixty-two per centof the respondents felt positive towards the Queen Street Pilot. In October 2020research undertaken by Colmar Brunton found 55 per cent of respondents consideredthat when the Pilot was finished Auckland City centre would be significantlyimproved.[56] Against that is Ms Beck's evidence that the HOTC's survey disclosed 79 percent of respondents did not support retaining the Emergency Works as a start point forthe Queen Street Pilot. That grew above 80 per cent as more people gave feedbackafter the close-off date. The common themes reported by the respondents were theappearance of Queen Street as a construction site, problems with accessing buildings,8 See also the comments of Barker J regarding a contractor's position when dealing with Councilsin Lamont v Hawkes Bay County Council [1981] 2 NZLR 442 at 452 (HC).safety and slower travel times on Queen Street, including buses. On the other hand anumber expressed support for the pedestrianisation of Queen Street.[57] Mr Eglinton also gave evidence of surveying 106 business operators and 136pedestrians. The response to the question: "Do you think the reduction in traffic lanesand the addition of concrete bollards and hit sticks has a positive or negative effect onQueen Street?" led to a negative response of 3.6 out of 10 with 1 being very negativeand 10 being very positive". The pedestrians' response was an average 3.8 out of 10.[58] It seems there is public support for the ultimate pedestrianisation of QueenStreet, but not for the existing Emergency Works.The overall justice/balance of convenience[59] The applicant acknowledges that on a "cosmetic level" the new works inStage 1 are better than the existing Emergency Works but says that they are stilltemporary, low quality and not good enough for the main street of Auckland.[60] Mr Lowery confirmed the applicant agrees with and supports the Council'slong-term concept of pedestrianisation. The issue the applicant has is that it does notconsider the Council's proposal for the new works in Stage 1 will improve the currentissues with the Emergency Works and further, there is no particular plan for the futurework. There will also be further disruption while the Stage 1 works are carried out.[61] Mr Potter's evidence is that during the delivery of Stage 1 the remainingEmergency Works and the rest of Queen Street will be assessed. Where they do notcontribute to either of the proposed bus network changes or any of the pilot projectobjectives they will be adapted or removed by July/August 2021. However they willnot return to the 2019 condition of Queen Street pre-emergency works because thatwould not be consistent with the Pilot objectives. The Stage 1 works themselves areonly expected to take six weeks. They should not be particularly invasive given theydo not involve hard construction.[62] The proposed new works in Stage 1 will in fact address some of the issuesraised by the applicant, at least in terms of the aesthetics and attractiveness of thatsection of Queen Street, even if they do not address the functionality issues. Theimprovement works under Stage 1 will be no more entrenched than the existingEmergency Work but will be a significant improvement. As Mr McIndoe observed:952. While one image does not describe a plan, I am cautiously optimisticthat, on the basis of the "mock-up" image prepared by LandLAB ,these street improvements can be a significant improvement over thecurrent Covid-19 emergency works. The image indicates thattemporary plastic bollards have been removed (at least in the areawhich is legible in this view) and there appears to be a reversion backto the base of the pre-Covid-19 streetscape, but with the addition hereof a 'parklet' some street-side planters and graphics on parts of thestreet surface. The success of these streetscape improvements willdepend on both their image and plan configuration, and I have yet tosight the latter.Undertaking[63] During the hearing Mr Lowery confirmed that if necessary the applicant couldpay $200,000 into Court as security for its undertaking as to damages.[64] The sum of $200,000 is based on the applicant's assessment of likely damagesthe Council may have to pay the contractor of between $110,000 and $132,000approximately. There may of course be other damages apart from the Council'spotential liability to the contractor. However, in the circumstances it is not necessaryto consider the adequacy of the undertaking offered by the applicant any further.Summary - discretion[65] On balance the discretionary factors do not support the grant of interim reliefeither.Result[66] The applicants fail to establish that the interim orders they seek are necessaryto preserve a position.9 Affidavit of Graeme Robert McIndoe, dated 27 April 2021 (footnote omitted).[67] If I am wrong in coming to that conclusion, the applicant fails to satisfy theCourt that it should exercise its discretion in favour of the applicant in any event.[68] The application for interim orders is dismissed.Costs[69] Costs should follow the event. Costs on a 2B basis are appropriate. I do notcertify for second counsel.Timetable[70] At the conclusion of the hearing I requested counsel to confer and settle atimetable to ready this case for hearing with some priority. Unfortunately counselwere unable to agree but have set out their proposed alternative timetables.[71] The proceedings are of public interest to the citizens of Auckland and thebusinesspeople and users of Queen Street in particular. I intend to fix a timetable thatbears those considerations in mind but also provides a reasonable time for the partiesto prepare for the hearing.[72] I make the following timetable orders to ready the proceedings for hearing onTuesday, 20 July 2021 at 10.00 am (two days allocated):(a) any amended statement of claim to be filed and served by 11 May 2021;(b) respondents to file and serve statement of defence by 2 June 2021;(c) respondents to produce their records in regard to the impugneddecisions (to the extent not already provided in response to LGOIMArequests and the Potter affidavit) by 2 June 2021;(d) applicant to file and serve any further evidence by 9 June 2021;(e) respondents to file and serve their evidence by 23 June 2021;(f) applicant to file and serve reply evidence by 30 June 2021;(g) applicant to file and serve submissions and common bundle by 9 July2021; and(h) respondents to file and serve submissions by 16 July 2021.__________________________Venning J