WELLINGTON INTERNATIONAL AIRPORT LIMITED v WAKA KOTAHI [2022] NZHC 954

WELLINGTON INTERNATIONAL AIRPORT LIMITED v WAKA KOTAHI [2022] NZHC 954 [6 May 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-000162[2022] NZHC 954In the matter of An application for judicial reviewBETWEEN WELLINGTON INTERNATIONALAIRPORT LIMITEDApplicantAND WAKA KOTAHI NEW ZEALANDTRANSPORT AGENCYFirst RespondentAND WELLINGTON CITY COUNCILSecond RespondentAND GREATER WELLINGTON REGIONALCOUNCILThird RespondentHearing: 27-28 April 2022Appearances: J L W Wass and M R G van Alphen Fyfe for ApplicantA J Wicks and J P Papps for First RespondentE L Higbee for Second Respondent (No appearance by leave)D M Kessell-Haak for Third Respondent (No appearance byleave)Judgment: 6 May 2022JUDGMENT OF GRICE J(Interim Injunction)ContentsIntroduction [1]Summary of conclusion [15]Interim injunction principles [21]The judicial review claims [28]First cause of action: Consultation [29]Second cause of action: Relevant considerations [33]Third cause of action: Unreasonableness [38]Fourth cause of action: Unlawful fetter of discretion [39]Relief [40]Principles of judicial review [42]Consultation [44]Disclosure [52]Unreasonableness [55]Mandatory considerations [56]Fettering discretion [58]Decision-making framework [61]Statutory framework [72]The process [81]First cause of action — failure to consult [147]Wellington Airport's submission [160]Consultation summary [166]Context [169]Errors in the modelling [180]Second cause of action — failure to consider relevant considerations [188]Failure to take into account the Traffic Control Devices Rule [191]Third cause of action — unreasonableness [199]Fourth cause of action — fettering/constrained process [200]Provisional assessment on the merits of the substantive application [210]Interim relief [211]Necessity to preserve the position of the applicant [213]Discretion on the circumstances of the case [227]Conclusion [233]Costs [235]Introduction[1] Let's Get Wellington Moving (LGWM) is charged with oversight of a strategyand its component projects and activities to solve Wellington's land transportproblems. It brings together in a partnership the three main agencies governing landtransport in the city and the region. The main agency charged with public and regionalroad transport strategy is the Greater Wellington Regional Council. The WellingtonCity Council is responsible for roads, except state highways, footpaths and cyclewaysin the city. The New Zealand Transport Authority, known as Waka Kotahi,1 isresponsible for the National Road Transport strategy as well as state highways andmanaging the central government funded National Road Transport Fund. 2[2] LGWM is funded by the three agencies in various proportions to an overallsum in the vicinity of $8 billion. It has been under local and national, political pressureto deliver on projects. One of those projects includes the lowering of the speed limitsand construction of a pedestrian and cycle crossing along Cobham Drive, a four-lanestate highway which is the primary route from the city through the Mt Victoria tunnelto the airport and the eastern suburbs. The speed limit has already been reduced andthat is outside the scope of this proceeding although it has some indirect bearing onthe issues at hand.[3] This application seeks an interim injunction to suspend the construction of theat-grade (level) signalised crossing on Cobham Drive by Waka Kotahi. It will haveseparate offset crossings for each side of the road, each separately controlled. Theproposed crossing will cost about $2.8 million to construct and will be the onlypedestrian/bike crossing for 1.8 kilometres of that four-lane highway.[4] Wellington Airport, the applicant, opposes the construction of an at-levelcrossing as opposed to a grade-separated crossing (such as an overpass) at this stage.It has filed a substantive application for judicial review of the decisions related to theconstruction of the crossing upon which the present interim application is based.While it has no formal representative role it says it represents the interests of1 Also known as NZTA.2 I refer to the respondents as a group as LGWM.businesses based at the airport, including a hotel, as well as passengers who use theairport and other residents and businesses who use Cobham Drive and surroundingroads, including taxi drivers.[5] Wellington Airport says that it had no option but to apply for an interiminjunction to immediately stop the construction. It says it cannot wait until a fullhearing of its judicial review application, which is scheduled for 20 and 21 July 2022as once construction starts, traffic to and from the airport will be delayed due to theconstruction works and there will be an inevitability about the crossing.Wellington Airport says the damage will have begun and it is not in the public interestto use money earmarked for transport projects on construction if the project issubsequently stopped. It also says the construction of the crossing will entrench thatsolution, despite LGWM's resolution that the effects of the crossing will be monitoredand work will continue on another medium- or long-term solution.[6] Wellington Airport acknowledges that judicial review does not target the meritsof a decision but rather the process by which the decision is reached and any flaws inthe decision-making or unreasonableness in the public law sense by thedecision-maker.3 While the Court in a judicial review application is not concernedwith the intrinsic merits of a decision,4 they may be relevant if the decision was onethat no reasonable decision-maker could have made in the circumstances.[7] Waka Kotahi had the statutory responsibility to approve the construction of thecrossing and to fund it.5 It did so and was supported in that by an earlier decision ofthe LGWM to endorse the business case for the project.[8] A public announcement that the crossing would be built was made inMarch 2022. That announcement had followed a process which included a publicconsultation in relation to the crossing proposal in June/July 2021. The LGWM Boardapproved the business case on 27 January 2022. Waka Kotahi approved the funding3 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55; [2008] 1NZLR 13 at [25] per Blanchard J.4 Isaac v Minister of Consumer Affairs [1992] NZLR 606 (HC) at 625 per Tipping J.5 This is technically referred to as an "at-grade" signalised crossing. This means it is at the samelevel as the road rather than an overpass or underpass and it is controlled by traffic lights.for the crossing on 10 February 2022. It also led the project, including the consultationprocess on the project, under the LGWM banner. There were two main issues whichwere highlighted in the business case. The first was that of safety for pedestrians andcyclists given the lack of a pedestrian crossing in that portion of the road. There hasbeen one fatality in the vicinity caused by a pedestrian attempting to cross the highwayas well as a number of serious accidents involving pedestrians and cyclists. Thesecond issue is the extra delay which would be caused to motorists using CobhamDrive.[9] Wellington Airport is interested in all proposals affecting transport in theregion, and in particular the routes to and from the airport. It has been engaged withLGWM for some years in relation to the Wellington transport strategy and variousprojects. The Cobham Drive crossing proposal is of great concern to it. It madeextensive submissions during the consultation phase on the crossing in June/July 2021.It has also written to the Chairman of the Board of Waka Kotahi directly about itsconcerns. It considers the decision to construct a level signalised crossing on CobhamDrive was made without proper consideration of the issues, particularly as they relateto the delays likely to be caused to vehicles travelling to and from the airport onCobham Drive.[10] Wellington Airport says that LGWM and Waka Kotahi failed to properlyconsult in the public law sense. In particular, it says LGWM and Waka Kotahi did notsupply it with documents and information it asked for which would have enabled it tomake proper submissions, the submissions it made were not properly considered, andthere were material errors in the business case for the crossing presented to theLGWM Board, upon which it relied to make the decision approving the crossingproject. It says the decision to construct the crossing is unreasonable in the legal sense.[11] Wellington Airport also says that LGWM and Waka Kotahi had a closed mind,in that they had already determined that a signalised crossing on Cobham Drive wouldbe constructed prior to consultation. Therefore, they did not properly consider thesubmissions, which were overwhelmingly against a level signalised crossing butfavoured an overpass or underpass which when constructed would not interrupt trafficflow.[12] Waka Kotahi says there have been no errors which would require it or LGWMto reconsider the decisions concerning the crossing. It was due to start constructionon 2 May 2022 but agreed to delay commencement of the construction pending thisdecision on the interim injunction application.[13] Despite the truncated preparation time for this hearing, the parties have ensuredthat the Court was well informed by the provision of affidavits of the relevant parties,including an economic expert for Wellington Airport. He critiques the arithmetic,assumptions, and modelling tool used to prepare the business case relied upon in thedecision to construct the crossing. Waka Kotahi relies on the evidence of its experttransport engineering consultant who assisted in the preparation of the business case.His evidence rebuts most of the criticisms and says that the adoption of theassumptions and the selection of the tools were matters properly within the judgementof Waka Kotahi.[14] While bearing in mind this is only an interim hearing, the material put beforethe Court was substantial, and counsel for each party advanced careful andcomprehensive submissions which ran for more than a day of hearing time.Summary of conclusion[15] The applicant must establish that an interim injunction is necessary to preserveits position as a threshold step. If it succeeds there remains to the court a discretion asto whether to grant the application.[16] The applicant has failed in my view to establish that the interim order isnecessary to preserve its position pending the decision on the application for judicialreview. Even accepting that it represents interests wider than its own, the detrimentaleffects it seeks to avoid relate to the delays likely to be caused during the constructionperiod from now until November this year. Wellington Airport points to various directand indirect effects which may flow from the delays, such as reputational damage forthe airport and increased costs for businesses. However, these are not able to bequantified with any degree of precision, nor was there any attempt to do so. The delayswill be caused by roadworks and the traffic effects will be managed by Waka Kotahiin that period. While an attempt has been made to assess these delays in monetaryterms that is not useful in the present assessment nor can it be monetised with anyprecision. Delay is an intangible factor, but I am not satisfied that a delay caused byconstruction for motorists is sufficient to establish a position to be preserved.[17] In addition, even if the threshold test were established, I would exercise mydiscretion to dismiss the application. One factor in favour of the application are thatthe construction (and the crossing if it is built before the final decision) will causedelays for motorists. However, I do not put much weight on the argument that theprovision of a crossing may lead to delays on medium term and longer-term solutions.LGWM has directed that the effects of the crossing be monitored and urged work tocontinue on alternative medium- and long-term solutions.[18] The factors in favour of dismissing the application are that the safety issueswill be mitigated in the near future, the project is in line with the principles governingthe LGWM long and medium-term strategies as well as the project objectives ofimproving safety for people walking and cycling and improving connections toexisting and planned walking, cycling and public transport infrastructure.[19] Recognising the full judicial review application is yet to be heard, the meritsof the judicial review application at this stage are not unduly strong. The constructionis due to begin, and the resources have been allocated it is inappropriate to delay thisproject further in the circumstances.[20] Accordingly, I dismiss the application.Interim injunction principles[21] Section 15 of the Judicial Review Procedure Act 2016 allows the Court to makeinterim orders, if in the Court's opinion it is necessary to do so to preserve theapplicant's position.[22] Section 15, as relevant, reads:15 Interim orders(1) At any time before the final determination of an application, thecourt may, on the application of a party, make an interim orderof the kind specified in subsection (2) if, in its opinion, it isnecessary to do so to preserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interimorders—(a) prohibiting a respondent from taking any further actionthat is, or would be, consequential on the exercise of thestatutory power:(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[23] First, the statutory threshold of the necessity to preserve the position of theapplicant must be established. The section then allows a wide discretion and does notseek to define factors relevant to the discretion. In this second step, the Court mustconsider all of the circumstances of the case. These include the strength or weaknessof the claim, the statutory framework, the public interest, and the private and publicrepercussions of granting relief.6[24] In a benchmark decision of the Court of Appeal in Carlton & United Breweriesv Minister of Customs,7 Cooke J said this valuable power should not be restricted byany formulations such as those to be found in relation to other injunctions.8 He saidthat there was no general rule requiring a prima facie case. In general, the Court mustbe satisfied that the orders sought are necessary to preserve the position of theapplicant, "which must mean reasonably necessary".96 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [JR15.02].7 Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA).8 The leading case setting out those principles is American Cyanamid Co v Ethicon Ltd [1975] AC396, [1975] 1 All ER 504 (HL).9 Carlton & United Breweries v Minister of Customs, above n 7, at 430.[25] Cases since Carlton & United Breweries v Minister of Customs have confirmedthat the approach to the threshold test will differ depending on the area of lawinvolved.10 For instance, in immigration cases, an applicant for relief would not berequired to demonstrate a strong possibility of success but merely a real contestbetween the parties with a reasonable chance that the applicant may succeed. Thismay be contrasted with the endorsement by the Supreme Court in Easton v WellingtonCity Council.11 In that case, the Supreme Court refused leave to appeal from thedecision declining interim relief in which the lower courts had found the order wasunnecessary to preserve the applicant's position, finding that the substantive case wasweak. Also relevant may be the expected duration of the interim orders, the relevantdecision-making framework approach and the overall interests of justice.12[26] Other points referred to in the cases which may be relevant to the exercise ofthe discretion include:(a) If there is no arguable or justiciable issue raised, there is no position topreserve.13(b) There must be a "necessity", as contrasted with a "simple desire topreserve a position if possible".14(c) A gloss on the word "necessary" or an attempt to define it is notappropriate.15(d) If the position to preserve relates to financial implications of a decisionon an applicant, the Court requires evidence of a real and serious riskof the implications alleged. Potential delay or a minor financialramification such as an additional administrative burden in payment10 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC).11 Easton v Wellington City Council [2010] NZSC 10, (2010) 20 PRNZ 360.12 Logan v Minister for Land Information [2021] NZHC 1050 at [27].13 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55,(HC), upheld on appeal in Whale Watch Kaikoura Ltd v Transport Accident InvestigationCommission CA87/97, 12 May 1997.14 Bishop v Central Regional Health Authority HC Te Papaioea | Palmerston North M47/97, 11 July1997.15 Carlton & United Breweries Ltd v Minister of Customs, above n 7, at 443 per Somers J.arrangements, do not justify the grant of interim relief. Mere assertionswithout evidence supporting the proposition that there would befinancial detriment are insufficient.16(e) The strength of the applicant's substantive case is usually, but notalways, tested. The degree of strength that an applicant is required todemonstrate in relation to its case at the interim order level depends onthe circumstances of the case.[27] In Criminal Bar Association of New Zealand Inc v Attorney-General, theinterim relief was sought in relation to a decision by the Secretary for Justice tointroduce changes to the Criminal Legal Aid Scheme which would result in thelowering of fixed fees paid to criminal legal aid providers.17 Some providers said thattheir practices were marginal. The Court rejected that claim and said that it would benecessary for the plaintiff to "demonstrate a real and serious risk" that somepractitioners would be unable to carry on practice if the readjustment took place.18There was no evidence which supported the proposition that the "financial position ofany practitioner" was so "dire as to justify interim relief on that account".19The judicial review claims[28] The applicant has filed a draft statement of claim which it has indicated itintends to amend following this hearing. The grounds for the claim before me forinterim relief were argued on the basis of the draft statement of claim as filed.First cause of action: Consultation[29] The first cause of action alleges a failure to consult. The applicant says theduty to consult on the Cobham Drive crossing proposal includes an obligation to:16 Criminal Bar Association of New Zealand Inc v Attorney-General [2012] NZHC 400 at [29] and[30].17 At [30].18 At [30].19 At [30].(a) provide submitters with sufficient information and opportunity toenable full, intelligent and useful responses;(b) to consider those responses; and(c) to make a decision with an open mind prepared to change its positionin response to those proposals.[30] The applicant says the respondents failed to consult in accordance with theirobligations and did not provide the applicant with sufficient information to enable fullresponses addressing the matters in contention. The material sought and theconsequences of non-disclosure is pleaded as follows:(a) The SSBCL [Single Stage Business Case (Lite)] contained the resultsof the respondents' traffic modelling and was relevant to theCobham Drive crossing decision.(b) The applicant requested the respondents provide it with data andtraffic modelling.(c) The respondents provided a printout of the Austroads tool but failedto provide the applicant with any version of the SSBCL or the SIDRAmodelling, whether before or after the formal consultation period.(d) The Case for Change was not an adequate substitute for thatdisclosure.(e) That failure:(i) impinged on the applicant's ability to make intelligent anduseful responses in respect of the Cobham Drive crossing;(ii) breached the duty to provide the applicant with reasonableaccess to relevant information in an appropriate manner andformat;(iii) denied the applicant and other submitters a full opportunity toidentify comment on the SIDRA data, assumptions andreasoning underlying the proposed decision; and(iv) contributed to the respondents using traffic modelling datacontaining logical and arithmetical errors to dismissconsultation concerns that traffic delays were insufficientlyassessed.[31] A further claim is that the respondents "failed to fairly, accurately, andadequately summarise consultation submissions for decision makers". This refers toa failure to include in the consultation summary presented to the decision-makers anumber of the applicant's specific concerns and the failure to include those concernsin both the SSBCL and in the funding request. Those failures meant the LGWMdecision was made in the absence of a "fair, accurate and adequate summary of theconsultation submissions".[32] The applicant says that the respondents did not "fairly and openly consider theconsultation responses with a willingness to change their mind on the proposals". Theapplicant says the respondents were not presented with a fair and complete analysis ofthe submissions, nor an analysis that the applicant would have been able to provide ifsufficient material had been disclosed to it.Second cause of action: Relevant considerations[33] The second cause of action is a failure to consider relevant considerations. Theapplicant says it provided written submissions to LGWM on 28 July 2021 and pleadsthat it submitted as follows:(a) LGWM should choose the best solution, not a suboptimal alternativesimply because it is cheaper or quicker;(b) an overpass would have better safety outcomes and is overwhelminglydesired by the community;(c) LGWM had not properly considered, costed, or genuinely soughtsubmissions on, an overpass option;(d) LGWM had inflated the safety and time benefits to pedestrians,including by not adequately identifying the extent of demand throughpedestrian usage data, the number of attempts at illegal crossings, orsurveys of desire to cross to the ASB indoor sports centre;(e) LGWM had not assessed the issue of an at-grade crossing causingdown-stream issues, such as tail-backs to the Troy Street roundaboutand along Calabar Road;(f) LGWM had not properly costed the impact on motorists, usingincorrect figures for average delay and inappropriate values of timefor cars travelling along Cobham Drive, which has a heavy proportionof airport and business travel;(g) a crossing was the wrong way to achieve a short-term safety outcome,and LGWM should consider alternative options such as signage,planting and other barriers to deter informal crossing until a bettersolution—integrated with major LGWM projects like Mass RapidTransport and Mt Victoria tunnel improvements—was implemented;and(h) the applicant was unable to support proposals on the airport accessroute that would significantly worsen congestion and delays that arealready at intolerable levels.[34] The applicant said the LGWM had recorded the key themes of submissionsmade in its consultation summary document of 25 August 2021. That included apreference for an overbridge or underpass rather than an at-grade signalised crossing;concern that the crossing would add to existing congestion; concern that the crossingand lower speed limits would cause tail-backs through roundabouts; the crossingwould create safety concerns for users and drivers; and disagreement that a crossingwas required. However, the applicant says the consultation summary did not:(a) acknowledge that the applicant was opposed to the crossing; or(b) identify the specific concerns raised by the applicant as set out above;or(c) analyse those specific concerns.[35] The applicant says its concerns were material to a decision to proceed with thecrossing because they affected the safety of the crossing, the economic case for thecrossing, and the relationship with a Mass Rapid Transport (MRT)20 solution, whichwas part of a larger plan intended to ease the transport difficulties between the airportand the city.[36] Wellington Airport says that the respondents were not presented with a fair andproper summary of the consultation submissions and therefore LGWM could notconduct an analysis of the matters raised nor consider whether they affected therationale for the proposed crossing. It was not an adequate response that any trafficdelays could be addressed after the crossing was built, which was the response givenin the business case presented to LGWM. Wellington Airport also says therespondents did not analyse whether the proposed crossing solution would address the20 Public transport, such as light rail or buses, as opposed to private transport.safety concerns identified and prevent the type of crash that caused a death onCobham Drive in 2016.[37] The applicant also says that the respondents failed to have regard to the LandTransport Rule: Traffic Control Devices 2004 (the TCD Rule) which governs theinstallation and operation of traffic controls such as traffic lights. It says that theTCD Rule is a mandatory relevant consideration for approving the installation andoperation of traffic control devices and was not considered as part of the decision toproceed with an at-grade crossing.Third cause of action: Unreasonableness[38] The third cause of action is unreasonableness. The applicant says that therewere mistakes and "patent logical errors" in the SSBCL which led to an incorrectbenefit to cost ratio (BCR) in the document. The correction of those errors leads to aBCR of less than one, compared to a BCR of 1.2 in the SSBCL. Therefore, thedecisions by the respondents made in reliance on the SSBCL were tainted by thoseerrors, making the decisions invalid and unlawful.Fourth cause of action: Unlawful fetter of discretion[39] The fourth and final cause of action is a failure to identify and assess alternativeoptions and the unlawful fetter of discretion by the respondents. The applicant saysthe respondents adopted a constrained process that fettered their discretion as follows:(a) The respondents have acknowledged that they were under pressure tobe seen to achieve visible progress on "early delivery" projects.(b) The respondents have acknowledged that they were under pressure todeliver a solution for Cobham Drive as soon as possible.(c) The respondents made commitments to the Minister of Transport tostart construction on a Cobham Drive solution in 2021.(d) The respondents consulted on only one option for the Cobham Drivecrossing.(e) The first respondent approved pre-implementation expenditure on anat-grade crossing before the SSBCL had been prepared and beforeconsultation had been conducted.(f) The respondents chose to analyse the proposal using a Single StageBusiness Case Lite model which was not suitable for the nature of theproject and improperly constrained the analysis.(g) The respondents considered that an at-grade crossing was the only onewhich would deliver safety benefits within the next three years.(h) The respondents' process foreclosed enquiry into other options thatwould deliver safety solutions quickly, such as barriers, while theyinvestigated alternative long-term options.(i) The respondents' decision to choose a solution that could beimplemented quickly foreclosed the consideration of other viablealternatives, including a crossing that would be consistent with along-term MRT solution.(j) The combined effect of the decisions and considerations pleadedabove was to preclude the respondents' ability to make any decisionother than to proceed with an at-grade crossing on Cobham Drive.Relief[40] The relief sought in the full hearing is a declaration that the respondents actedunlawfully in failing to adequately consult, an order quashing the respondents'decision to approve the crossing and seek funding, and an order quashingWaka Kotahi's decision to approve funding.[41] I now turn to consider the principles of judicial review.Principles of judicial review[42] In New Zealand the courts have approached judicial review bearing in mindthat it is a supervisory jurisdiction to ensure that powers are exercised in accordancewith the law. In Coromandel Watchdog of Hauraki (Inc) v Minister of Finance,Simon France J noted that judicial review was intended as a comparatively simpleprocess of "testing that public powers have been exercised after a fair process, and ina manner, which is both lawful and reasonable".21[43] In this case, in general terms the errors that are alleged relate to failure toconsult properly and basing the decision on material errors and having made up its21 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13], citingBNZ Investments Ltd v Commissioner of Inland Revenue HC Wellington, CIV-2006-485-697,7 December 2006 at [16].mind prior to consultation to construct the crossing, either because the decision-makerhad a closed mind or it was improperly influenced by political imperatives.Consultation[44] In relation to consultation, both parties pointed to the principles set out inWellington International Airport Ltd v Air New Zealand.22 That case established thatconsultation did not require agreement, nor did it necessarily involve negotiationtoward an agreement, although that might occur. However, consultation was morethan mere prior notification. If the person having the power to make the decision wasrequired to consult, for consultation to be meaningful, the other party must haveavailable to it "sufficient information to enable it to be adequately informed so as tobe able to make intelligent and useful responses".23[45] The obligation of the decision-maker is to consult properly and with an openmind before making any final decision.24 A proper opportunity must be given to theperson consulted to put any matters forward that they wished to,25 and thedecision-maker must take due notice of what is said.26 The proposal must not havebeen finally decided upon prior to consulting. Rather, the decision-maker must listento what others have to say, considering their responses, and only then saying what willbe done.27[46] Waka Kotahi also relied on the comments on consultation made by French J inAorangi School Board of Trustees v Ministry of Education.28 In that case, the Boardof Trustees sought judicial review against a ministerial decision to closeAorangi Primary School. The review was based on claims that the decision wasvitiated as a result of inadequate consultation, breaches of natural justice andunreasonableness. It was argued that the Minister had wrongly failed to disclose tothe Board in the course of the consultation copies of the working papers for the critical22 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).23 At 676.24 At 683.25 At 683.26 At 684.27 At 675.28 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC).cost benefit analysis undertaken to justify the closure and of an Ernst & Young reportanalysing the costs and benefits.[47] French J pointed out:(a) Consultation was context-specific, and its content and nature isdetermined by the relevant statutory scheme and objectives.(b) Consultation is not negotiation — the essential requirement isopen-minded communication. The decision-maker must genuinelyprovide a meaningful opportunity to those who are given the right to beheard to identify and advocate their arguments in relation to theproposal.(c) The consultees must be sufficiently informed as to the material factsand issues so as to be able to make an intelligent and useful response.29(d) The extent and nature of the necessary consultation should beproportionate to the significance of the proposal.[48] Her Honour emphasised that it was not for the Judge on review to assess thewisdom or merits of the decision or decide whether the outcome was right or wrong.30The focus was on process. The Judge went on to distil the following principles fromthe case law:31(i) Whether or not necessary consultation has occurred requires aconsideration in each case of the particular facts, the significance ofconsultation in terms of the relevant statutory scheme, and acommon-sense approach to what is required as a matter of law in theparticular case (Manawatu Polytechnic v Attorney-General HCWellington CP324/97, 15 December 1997).(ii) What is meaningful, that is, "true", consultation, its extent, how far itgoes and for how long is a question of fact and degree.(iii) Consultation is not a negotiation. It does not require ultimateagreement. Nor does it necessarily require or involve an ongoing29 At [36(iv)].30 At [8].31 At [36].dialogue over a protracted period. What it does require isopen-minded communication and hearing the voice of others who aregiven the opportunity and right to be heard. The party obliged toconsult – in this case the Minister – must keep his/her mind open,consider what has been said and be ready to change and even startafresh (Walsh v Pharmaceutical Management Agency [2010] NZAR101 (HC)).(iv) Consultation also requires that the consultee know what is beingproposed and be sufficiently informed so as to be able to make anintelligent and useful response (Wellington International Airport Ltdv Air New Zealand [1993] 1 NZLR 671 (CA)).(v) The more significant the decision, the more cogent the consultationmay have to be. A ministerial decision to close a school is recognisedby the Education Act to be an important decision (Heke vAttorney-General HC Whangarei M9/95, 8 February 1995).[49] In summary, French J put it in this way:32 the question is really whether those whose views were being elicited knewand understood what they were being asked about, knew what the issues wereand had sufficient information to provide an intelligent and useful response.[50] The Board had complained that it was never provided with underlying workingpapers on which the cost calculations were based. The Ministry had undertaken acomparison of costs of rebuilding with costs of closing the school. Those underlyingworking papers had been independently reviewed by Ernst & Young, which hadconfirmed the process for estimating capital and operating costs involved the use ofstandard templates.33 After the decision was made, the Minister gave the Board a copyof the Ernst & Young report and yet later the Board also obtained copies of the standardtemplates, which it had its own accountant, Staples Rodway, analyse.[51] Staples Rodway was commissioned by the Board to prepare a second report(after the Minister's decision) questioning the validity of the standard templates onvarious grounds, including the suitability of the templates for the nature of the school,and it came up with a radically different calculation.3432 At [42].33 At [54].34 At [56].Disclosure[52] The Judge in Aorangi School Board rejected the submission that the Boardshould have been supplied with the Ernst & Young report and the underlying workingpapers largely and fundamentally because there was no such obligation of disclosure.She said: 35 While consultation undoubtedly requires the provision of relevantinformation, it does not require chapter and verse. Consultation is notlitigation, nor is it a process akin to that of discovery (R v North andEast Devon Health Authority, ex parte Coughlan [2001] QB 213(CA)):[112] It has to be remembered that consultation is notlitigation: the consulting authority is not required to publiciseevery submission it receives or (absent some statutoryobligation) to disclose all its advice. Its obligation is to letthose who have a potential interest in the subject matter knowin clear terms what the proposal is and exactly why it is underpositive consideration, telling them enough (which may be agood deal) to enable them to make an intelligent response.The obligation, although it may be quite onerous, goes nofurther than this.[53] In Aorangi School Board, the Judge warned that it was inappropriate to elevatethe consultation obligation to:36 an impractical level where a consulted party would be able to insist onbeing provided with every last detail on an issue to enable it to make its ownindependent analysis. Consultation would become litigation, with discovery,which is something the courts had expressly stated it is not.[54] In that case, her Honour noted the Board did have the substance of what wasbeing consulted over and a wealth of material, some of it through its own efforts.37Unreasonableness[55] French J also reiterated the well-known test for unreasonableness in public lawterms in that case as follows:35 At [60].36 At [85].37 At [86].[100] In considering the reasonableness of a decision, the orthodox test isthat the applicant must show the decision was so unreasonable no rationaldecision maker could have come to it Mandatory considerations[56] Cooke J set out the guiding principles on this topic in CREEDNZ Inc vGovernor-General.38 He said:39What has to emphasised is that it is only when the statute expressly orimpliedly identifies considerations required to be taken into account by theauthority as a matter of legal obligation that the Court holds a decision invalidon the ground now invoked. It is not enough that a consideration is one thatmay properly be taken into account, nor even that it is one which many people,including the Court itself, would have taken into account if they had to makethe decision.Questions of degree here can arise and it would be dangerous to dogmatise.But it is safe to say that the more general and the more obviously importantthe consideration, the readier the Court must be to hold that Parliament musthave meant it to be taken into account.[57] The Court of Appeal reiterated these comments in 2012 in Secretary for Justicev Simes,40 in which the Court went on to note:[50] In cases where the criteria stipulated are not exhaustive, or where noneis specified, the considerations governing the exercise of discretion must beascertained from the subject matter as well as the scope and objects of therelevant legislation: Keam v Minister of Works and Development. Decisionmakers must approach mandatory relevant considerations with duedeliberation and an open mind. Mandatory considerations may not be"rebuffed by a closed mind so as to make the statutory process some idleexercise". However, the weight to be given to mandatory considerations is amatter for the decision maker.Fettering discretion[58] Whether or not a discretion is fettered in public law terms depends on whetherthe effects of the impugned influences or constraints said to affect the exercise of adiscretion are within legally accepted limits. There may be limits and influenceswhich inform or constrain the decisions which may fetter the decision-maker's38 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).39 At 182–183.40 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [49].discretion in a real sense but do not rise to the level of being fettering in the public lawsense.[59] There are three general categories described as unacceptable fettering ofdiscretion. The first is allowing someone else to exercise or control the discretion,described as "acting under dictation".41 The second type of fettering is as a result ofcontracts that unacceptably restrict the future exercise of the decision-maker'sdiscretion. The final category is a self-imposed limit of an authority's power to act.[60] The essential feature of an unlawful fettering of discretion is that the authoritywith the power to decide did not generally exercise it. Of course, that is not to say itmay not take into account guidance and views of others in reaching its decision.42Decision-making framework[61] Wellington Airport is a private limited liability company. It is part-owned(34 per cent) by Wellington City Council and the balance of the shareholding is byNew Zealand Airports Ltd, a private investment vehicle. It operates for profit but haspublic interest overtones, particularly given its Council shareholder. For the purposesof these proceedings, arrangements were put in place to ensure there is no conflictbetween the directorship obligations of the Mayor, who sits as one of theCouncil-appointed directors on Wellington Airport.[62] Wellington Airport has been an active participant and submitter on the LGWMstrategy and projects. Traffic to and from the airport accounts for a substantial numberof motor vehicles on Cobham Drive.[63] Each of the three members of the LGWM partnership were established andoperate under different legislation. Waka Kotahi is established by and functions underthe Land Transport Management Act 2003. The Wellington City Council and theGreater Wellington Regional Council are both subject to the provisions of the41 Graham Taylor Judicial Review: A New Zealand perspective (4th ed, LexisNexis, Wellington,2018) at [15.71].42 See for example Rendell v Release on Licence Board (1987) 10 NSWLR 499 (CA).Local Government Act 2002, which dictates the approach to consultation anddecision-making by local authorities.43[64] The role of the LGWM Board and the relationship between Waka Kotahi,Wellington City Council and Wellington Regional Council is set out in a RelationshipManagement Agreement – Relationship and Funding Agreement, dated 14 February2020 (the Relationship Agreement).44 The commitment under the agreement is thatthe parties will work "collaboratively and cooperatively" with each other to facilitatethe delivery of an integrated transport package and, in particular, work together on theimplementation and operations of detailed investigation and developments stage of theRegional Transport Network.45[65] The agreement commits the parties to a collaborative working relationship andthat there will be a "no surprises" approach to the performance and delivery of thefunctions under the agreement in relation to LGWM. At the same time, the statutoryresponsibilities of the parties are expressly acknowledged.46 The parties recognise thateach of them has a particular statutory power, function or regulatory role and is boundby statutory responsibility. The agreement does not bind any of the parties to make aparticular decision in relation to their respective statutory functions. If there is aconflict between the obligations under the agreement and a party's statutory function,the statutory function prevails to the extent of the conflict.47 TheRelationship Agreement provides for various tiers of interface between the twocouncils and Waka Kotahi. At a political or senior internal governance level, therelationship operates by way of an LGWM governance group established under theRelationship Agreement.48[66] However, it is the Board which is established and maintained under theRelationship Agreement that is to provide "overall strategic direction and43 Local Government Act 2002, s 82.44 New Zealand Transport Agency, Wellington City Council and Wellington Regional Council Let'sGet Wellington Moving – Relationship and Funding Agreement (14 February 2020) [theRelationship Agreement].45 Clause 1.3(a).46 Clause 1.5.47 Clause 1.5(b).48 Clause 3.1.decision-making for the investigations and developments forming part of the LGWMstrategy".49[67] Each of the parties has one vote on the LGWM Board and all decisions mustbe unanimous.50 An LGWM programme director is appointed and reports to theBoard.[68] If a decision from the LGWM Board requires one of the parties to follow aninternal decision-making process for obtaining internal approval, the representativesof the relevant party will follow the required processes to seek the internaldetermination or decision and report the decision back to the Board.51[69] Mr David Dunlop, the Acting Programme Director for LGWM, in an affidavitindicated that in most contexts, Waka Kotahi was to be the procuring party or principalin relation to the goods or services from the third-party supplier.52 In practice, he saidproject teams could be comprised entirely or almost entirely of one partner, agency ora mixture of partners or agencies.53[70] The LGWM principles are set out in sch 3 of the Relationship Agreement. The"guiding principles" included principles such as "accessible, healthy and safe" and"better public transport".[71] The LGWM Board endorsed the business case for the construction of thecrossing. Waka Kotahi was the statutory agency which approved the crossing and itsfunding for the specific activity under s 20 of the Land Transport Management Act(the "activity" was the construction of the crossing).54Statutory framework[72] Section 20 of the Land Transport Management Act provides:49 Clause 3.3(a).50 Clause 3.3(e).51 Clause 3.3(f).52 Affidavit of David James Dunlop, 21 April 2022, at [25].53 At [28].54 Land Transport Management Act 2003, s 5 definition of "activity".20 Approval of activities and combinations of activities(1) The Agency may approve an activity or combination of activities asqualifying for payments from the national land transport fund.(2) In approving a proposed activity or combination of activities, theAgency must be satisfied that—(a) the activity or combination of activities is included in thenational land transport programme or qualifies undersubsection (4); and(b) the national land transport programme continues to meet therequirements of section 19B; and(c) the activity or combination of activities is—(i) consistent with the GPS on land transport; and(ii) efficient and effective; and(d) the activity or combination of activities contributes to theAgency's objective; and(e) the activity or combination of activities has, to the extentpracticable, been assessed against other land transport optionsand alternatives; and(f) the relevant consultation requirements of this Act have beencomplied with.[73] "Activity" is defined under s 5 as follows:activity—(a) means a land transport output or capital project; and(b) includes any combination of activities.[74] The Land Transport Management Act is the key piece of legislation in relationto national transport. The purpose of the Act is to "contribute to an effective, efficient,and safe land transport system in the public interest."55 Under that Act, theresponsibility for preparing and approving regional land transport plans lies with theregional council of each region, which must approve the regional land transport planby a date approved by Waka Kotahi.56 A regional land transport plan must be prepared55 Section 3.56 Section 13(1).every six years.57 The core requirement is that the regional land transport plancontributes to the purpose of the Act and is consistent with the Government PolicyStatement on Land Transport.58 It must set out the results the Crown wishes to achievefrom the allocation of funding from the National Land Transport Fund over a periodof at least 10 years, as well as the Crown's Land Transport Investment Strategy andPolicy on borrowing for the purpose of managing the National Land Transportprogramme.59[75] The objective of the Waka Kotahi New Zealand Land Transport Agency underthe Land Transport Management Act is to undertake its functions "in a way thatcontributes to an effective, efficient and safe land transport system in the publicinterest."60 In order to do that, it has a number of functions which, in general terms,contribute to the objective of the Agency.61 The functions relate to regulatory,infrastructure planning and investment management, as well as general functionsconcerning the national land transport system.62 It is required to manage thestate highway system and to oversee it, including planning, funding, design,supervision, construction, maintenance and operation.63[76] Waka Kotahi has a duty to cooperate with "approved organisations",64 whichincludes local authorities. Waka Kotahi and every local authority must also considerthe needs of persons who are transport-disadvantaged.65[77] Waka Kotahi has a Board appointed by the Minister and operates under aStatement of Intent prepared in terms of the Crown Entities Act 2004.66 Waka Kotahimust publish an annual report on the National Land Transport Fund. This must includefinancial information, a statement of commitments and a statement of performance, aswell as an explanation of how the funding of activities contributes to the outcomes,57 Section 13(1).58 Government Policy Statement on Land Transport is issued pursuant to s 66 of the Land TransportAct.59 Land Transport Management Act, s 68.60 Section 94.61 Section 95(1).62 Section 95.63 Section 95(h).64 Section 38AA.65 Section 35.66 Section 100.objectives or impacts set out in the relevant Government policy statement on landtransport.67 Waka Kotahi must notify the relevant regional authority (or relevantregional transport committee) if it decides not to provide an activity or combination ofactivities in the National Land Transport programme or accord an activity a differentpriority to that accorded in the relevant regional land transport plan.68[78] Waka Kotahi is a Crown Entity and is bound by the Crown Entities Act 2004.This safeguards the independence of Crown entities such as Waka Kotahi as follows:113 Safeguarding independence of Crown entities(1) This Act does not authorise a Minister to direct a Crown entity, or amember, employee, or office holder of a Crown entity,—(a) in relation to a statutorily independent function; or(b) requiring the performance or non-performance of a particularact, or the bringing about of a particular result, in respect of aparticular person or persons.(2) This Act does not change the way in which the following functionsmust be carried out under an entity's Act:(a) statutorily independent functions in an entity's Act; or(b) functions that are carried out by a person acting judicially inrelation to a particular matter in accordance with an entity'sAct.[79] Statutorily independent functions of Waka Kotahi are set out at s 95(2) of theLand Transport Management Act:(2) The Agency's statutorily independent functions are to—(a) determine whether the particular activity should be includedin a national land transport programme:(b) approve activities or combinations of activities under section20:(c) approve procurement procedures under section 25.(3) When performing a statutorily independent function,—67 Section 11.68 Section 19D.(a) the Agency must act independently; and(b) the Minister may not give directions to the Agency in relationto performing that function.[80] The approval and funding of the construction of the crossing is such a statutoryfunction.The process[81] The construction of the crossing is consistent with the Wellington regional landtransport plan overseen by LGWM. This sets the direction for transport in the regionfor the next 10 to 30 years. It also covers rail and other transport.[82] The regional land transport plan signals to Waka Kotahi the projects the regionwould be seeking funding for. Waka Kotahi then considers those projects as part ofthe National Land Transport programme. It includes the Ngauranga (north ofWellington city) to Wellington Airport corridor. A major strategy in the National LandTransport Programme is an MRT solution and Basin Reserve improvements whichwill support the MRT as well as improve walking and cycling connections and enhancethe use of the Basin Reserve and improve amenities around the reserve. The planenvisages an extra Mt Victoria tunnel and a smarter transport network which isdesigned to encourage people to make better use of the public transport system anduse their car less. As part of the three-year Recommended Programme for Investment(RPI) developed by LGWM under the strategy are a number of projects whichconcentrate on encouraging walking and cycling and safety in the central city. Forinstance, these include transforming the Golden Mile (Lambton Quay) by, in terms ofthe preferred option, removing private vehicle access in the area and closing variousstreets, as well as changing speed limits in most central cities from 50km/h to 30km/h,which has already been implemented.69[83] One of the five projects identified in the three-year programme is theCobham Drive crossing and safer State Highway 1 speeds. The move to a loweringof the speed limit to and from the airport and the city, consistent with that plan, hasalready occurred from the Mt Victoria tunnel (at the city end) through to Calabar Road69 In June 2020, according to the Let's Get Wellington Moving website <www.lgwm.nz>.(leading to the airport), which runs off Cobham Drive. As noted above, theCobham Drive crossing construction is due to commence this month (May 2022) andthe completion date is November 2022.[84] LGWM endorsed the business case for the signalised crossing. The businesscase was largely prepared by Waka Kotahi. Once that had been approved or endorsed,the funding decision was sought from Waka Kotahi and approved under s 20 of theLand Transport Management Act. The funding estimate was $2.8 million.70 Eachinvestment decision must be supported by a "business case". This is, in the genericsense, a reasoned proposal to support investment in a particular phase of the projectfor which funding is sought.71[85] The approval was determined by Waka Kotahi under delegated authority.[86] Mr Dunlop is the Acting Programme Director for LGWM. He had beenseconded from his role of Major Projects Director for a private consulting firm, WSPNew Zealand Ltd (formerly Opus), for the last 12 months. He has been involved intransport planning since 1995.72[87] Mr Dunlop provided an overview of LGWM. The RPI developed by LGWM,to which I have referred earlier, was developed in 2018. The programme included fivefocus areas:(a) high quality walking and cycling;(b) better transport with higher capacity — between high and capacitymass transit;70 Dated 2 February 2022 between the Activity Class Manager (Nigel Hutt) and the team lead,Central and Lower North Island, Local Government Partnerships (Internal). The funding appearsto be in the region of a $2.586 million cost to NZTA (Waka Kotahi) but a total cost of $3.956million with a contribution by a third party.71 Affidavit of Howard Lyndon Cattermole, dated 19 April 2022, at [34].72 According to the affidavit of David Dunlop, at [3]-[4], Mr Dunlop holds an MSc in PlanningStudies (focusing on transportation) from Oxford Brookes University and a Bachelor of Resourceand Environmental Planning from Massey University. He holds the National Association of PublicParticipation (IAP2) certification and is a chartered member of the Chartered Institute of Logisticsand Transport. He has 25 years of experience of planning assessment and design of transportationprojects in New Zealand and the United Kingdom, working for a wide range of central governmentorganisations, local and regional authorities and private developers.(c) urban development land use changes and greater transport;(d) smarter transport network with road pricing; and(e) multi-modal state highway improvements.[88] The members of the LGWM Governance Group had developed a fundingmodel to seek support for an initial package of investments from Governmentministers. The RPI included a list of "early delivery improvements" which wereexpected to be delivered by 2024. As I have noted, this included the Cobham Drivecrossing as part of the central city and State Highway 1 walking, cycling and safespeeds project.[89] The Minister of Transport, supported by the Mayor of Wellington and the Chairof GWRC, announced an $8 billion indicative package for LGWM in May 2019.73[90] Mr Dunlop described LGWM's decision-making in relation to theCobham Drive crossing and speed review project. He noted that, in response toconsultation undertaken on transport scenarios in a 2017 round of feedback, there hadbeen submissions advocating for a crossing, bridge or underpass on Cobham Drive toenhance cyclist and pedestrian safety.74[91] Following consultation, the LGWM October 2018 Recommended Programmeof Investment report had listed under the heading "High Quality Walking and Cycling"a pedestrian crossing on Cobham Drive.75 The crossing was expected to help reducethe safety concerns on that part of the network and improve accessibility to theASB Sports Centre and community facilities in Kilbirnie.[92] The crossing was in a group of "early improvements" to be delivered by 2024while investigation and design of larger programme elements was undertaken. Thesetting of safer speed limits in and around the city, including the lowering of the speed73 At [16].74 Global Research Ltd Let's Get Wellington Moving: Full Analysis of Public Comments (March2018) at 34, 93, 164 and 342.75 LGWM October 2018 Recommended Programme of Investment (May 2019).limit on Cobham Drive, was part of the same programme. In June 2019, theWellington City Council had passed a resolution to consider options for agrade-separated crossing (underpass or overpass) on Cobham Drive in the context offuture steps for mass transit.76 This project was the subject of workshops inSeptember 2019 and would form the basis for the consultation document issued inJune 2021 (the Case for Change report).77[93] In December 2019, LGWM prepared a "System Design Improvement Memo"setting out the investment proposal for a crossing, noting that it closely aligned withGPS priorities of safety, access, environment and value for money.78 It was intendedto move people in fewer vehicles and improve walking and cycling options. Thedocument noted difficulties associated with a bridge or underpass, including the factthat LGWM would not be able to seek consent for a bridge or underpass until decisionswere made on mass transit which could delay construction by at least five years. Inthe interim, the memo proposed an at-grade (road level) signalised crossing untildecisions were made on mass transport. Following this, the LGWM replaced an earliergroup and was established by the Relationship Agreement in February 2020.[94] On 3 July 2020, the Coroner published a report on the death of Mrs TahiranBano, who died following a collision at Cobham Drive in March 2016. She had beenattempting to cross the eastbound lanes of Cobham Drive at a place which did notafford her of a good view of traffic approaching from the east. The drivers travellingtowards her had an equally poor view.[95] The Coroner made recommendations in her report, as follows:79At the time of the crash there were no pedestrian crossings, bridges orunderpasses along the section of road where pedestrians can cross the roadsafely. There are limited means for those walking, especially from the easternsuburbs to follow the most direct yet safest route to the intended locations.76 Affidavit of David Dunlop at [39].77 Let's Get Wellington Moving Cobham Crossing and Speed: Case for Change (24 June 2021)[Case for Change report].78 System Design Improvement memo, dated 16 December 2019.79 Detailed in the affidavit of David Dunlop at [44.1].[96] On 24 June 2021, LGWM released its Case for Change report setting out thework that had been done underpinning the proposed Cobham Drive crossing andcrossing speed review which was intended to guide consultation.80 The proposal wasfor an at-grade signalised crossing with a ramp to be constructed at one of variousproposed locations on Cobham Drive.[97] In the introduction of the Case for Change report it was described as a technicalnote to document the work underpinning the proposed Cobham Drive crossing andspeed review. The introduction noted that the project upon which feedback was soughtin the Case for Change report was a component of the LGWM three-year programmewhich had as priorities:● Making travel by bus to and through the central city faster and morereliable; and● Creating a better environment for people walking and on bikes.[98] The Cobham Drive crossing and speed review project was to combineimprovements for people walking and on bikes with changes to travel speeds onState Highway 1 within the programme area.[99] The introduction noted the background had been compiled from theCobham Crossing design assumptions report which was a working draft prepareddocument, the assumptions used in the concept design and a Speed Review Report forthe State Highway 1 speed limit review from Mt Victoria to the airport. The contentof the sections of the report was listed as follows:● Transport context;● Crossing problem statements and investment objectives;● Crossing options assessment;● Crossing details;● Speed review; and● Summary.80 Mrs Bano's death was also referred to in the Case for Change report, above n 77.[100] The proposed improvements were summarised as follows:● Implementing a signalised crossing on SH1 (Cobham Drive) betweenTroy Street and Evans Bay Parade to provide for improved activetravel connections between Miramar and Kilbirnie;● Reducing the speed limit on Ruahine Street from 70km/h to 50km/h;and● Reducing the speed limit on Cobham Drive and Calabar Road from70km/h to 60km/h.[101] Reference was made in the report to the fact that LGWM was considering arange of potential future improvements in the area, including the City Streets packagefor the public transport improvements between the city and Kilbirnie and Kilbirnieand Miramar over a medium-term timeframe (within 10 years) and a Mass TransitService to Miramar and the airport in the longer-term. The report noted that "[g]iventhe poor safety record of this particular corridor, coupled with the growth in pedestrianand cycling activity in the area, we need to provide a safe crossing as soon aspossible".81[102] The Case for Change report then went on to note the current travel demands,noting the daily average number of vehicles using Cobham Drive, as at 2019, was35,000 (two-way) and approximately 225 cyclists use the Cobham Drive path in thetwo-hour morning peak period and in the weekend 118 cyclists use the path in afour-hour period. Current travel performance times were set out in tables in thereport.82[103] The crossing problem statements and investment activities were set out in thereport as follows:833.1 Problem statementsThe following problem statements have been identified for the crossing:● Lack of safe crossing options causes people to take risks potentiallyleading to death and serious injury;81 At 6.82 At 7.83 At 9.● High traffic volumes and speed severe access betweenMiramar Peninsula and Kilbirnie by walking and cycling leading toincreased use of motor vehicles; and● Cobham Drive is a critical regional link connecting the airport andWellington CBD where travel time reliability needs to be considered.3.2 Evidence to support the problem statementsThe following evidence supports the problem statements:● 1.8 kilometres with no formal crossing facility east of Evans BayParade (refer Figure 4 below which shows that there are no safecrossing facilities along Cobham Drive which acts as a barrier forpeople wishing to travel between Miramar and Kilbirnie).● Between 2011 and 2021 there has been one fatal and one seriouspedestrian crossing crashes across Cobham Drive. During the sametime period, one serious injury and four minor injury cycle crashesoccurred along the route.Other factors influencing the need for a crossing include:● People accessing sports/community/education facilities south of SH1(Kilbirnie);● Evidence of informal/unsafe crossings;● Probable suppressed demand: people don't cycle to work and parentsdriving kids to school and sport given the lack of safe crossingfacilities;● New Cobham Drive and Evans Bay cycleways and Miramardevelopments are projected to increase the number of people needingto cross Cobham Drive to an estimated 250 people per day; and● Community, stakeholder and political requests for a crossing.3.3 Project objectives● Improve safety for people walking and cycling between Miramar andKilbirnie via Cobham Drive;● Improve connections to existing/planned walking, cycling and publictransport infrastructure to increase the choice of walking or cycling toaccess social and economic opportunities; and● Maintain predictable and acceptable journey times and throughput tokey regional destinations (airport and CBD).[104] The report went on to set out the crossing options assessment, noting that 12potential options for a crossing had been considered and showing where thoselocations were on a map. Connectivity implications for different locations of thecrossing were shown in a diagram showing how the various areas in the location wouldbe connected and where additional crossings might be required if a particular locationfor a crossing was chosen.84[105] A table describing some of the key crossing form differentiators and thepositives and negatives of the options set out the likely outcomes for the use of at-gradesignals, a bridge or an underpass as they affected travel time for pedestrians and peopleon bikes, access for mobility impaired, travel time for vehicles, impacts on the overdimension route, safety impacts and compliance. A bridge and underpass scored mosthighly (three ticks) for travel time for pedestrians and people on bikes compared to anat-grade signal (two ticks compared to three ticks for bridge and underpass). Levelaccess scored higher on the mobility impaired differential than did bridges oroverpasses, which were more difficult for mobility-impaired persons to navigate.Bridges and overpass also scored more highly than an at-grade signal for safetyimpacts (three ticks as opposed to two ticks). There was no implication for travel timefor vehicles if a bridge or overpass solution was constructed. A negative undercompliance for at-grade signals was that when there were breaks in traffic, peoplemight be encouraged to cross downstream of the signals. However, both the bridgeand the underpass scored worse on compliance because indirect routes result in non-compliance and an added issue with an underpass would be personal safety.85[106] Insofar as cost was concerned, the at-grade signal cost was put in the range of$0.8-$1.2 million, the bridge at $10-17 million and the underpass at $10-17 million.Only the bridge scored badly for visual impact. In relation to construction disruption,at-grade signals would cause the lowest disruption. Moderate disruption could beexpected with a bridge and high disruption for an underpass.[107] Under the table setting out the differentiators of the options, the comment wasmade that at-grade signals aligned well with the investment objectives of improvedsafety and improved connectivity, but potentially impacted on the reliability ofjourneys, though adding less than 2.5 per cent additional travel time. It was noted theat-grade crossing had a significantly lower cost and lower construction impact than84 At 12.85 At 14.the other options but may not be as well-supported by the public and stakeholders. Itwas noted a bridge would align well with the investment objectives of not impactingon the reliability of journeys and would separate vulnerable users of the crossing fromtraffic, thus improving safety. However, the vertical change in ramp level mightdiscourage use and lead to vulnerable users continuing to cross on the state highway.It also had visual impacts and property impacts as well as a relatively high cost.[108] A cost benefit analysis was set out based on the Austroads tool used in thepreparation of business cases, which converts the factors which form the costs orbenefits into monetary terms. The net benefit figure was generated by the tool, givingthe BCR range. The grade separation gave a lower BCR than signals.86 The technicalpreferred solution was set out as the at-grade signalised pedestrian crossing because itwould deliver improved access, especially for mobility-impaired pedestrians, as wellas safety for pedestrians. It was a significantly lower cost than grade-separated optionsand the construction and operational impacts of signals and raised platforms, whichwere proposed, were expected to have a minor impact on the duration of typicaljourneys along the corridor.[109] The report noted that a grade-separated solution would provide higher safetybenefits, with the additional cost to achieve the additional benefit significantly higher.It would also require resource consent and potentially require property purchase whichwould delay implementation in the realisation of any safety benefit.87[110] The proposal in the report is that the proposed crossing would have signals, araised safety platform to slow the speed of vehicles travelling through the crossing to40km/h (from the proposed speed limit of 60km/h) and the crossings would bestaggered on either side of the road to allow two crossings to be operated separately,minimising the impacts on the reliability of journeys.[111] The report noted the Waka Kotahi standard safety investigation toolkitindicated a mid-block raised pedestrian crossing was expected to result in a 40 per centreduction in deaths and serious injuries. It would delay crossing users by86 At 16.87 At 17.approximately 45 seconds and vehicles by less than 15 seconds. The queues causedby the crossing were not expected to reach adjacent intersections. The delays did notconsider the current impact of adjacent intersections and congestions, which mightmean at peak times the crossing would not increase overall travel times.88 Theconclusion was that travel times for two routes along the intersection were generally10 minutes or more and therefore an additional 15 seconds of delay would notsignificantly change the time taken to travel the corridor.[112] The report went on to describe the reasons for the speed review. The speedlimits are now in place along Cobham Drive. The judicial review was not directed atthe new speed limits, although they will be a factor influencing travel times and thenet contribution of delay by the proposed crossing on Cobham Drive. The speed inthe relevant area has been reduced from 70 km/h to 60 km/h.[113] The consultation document connected the crossing to the followingproject/investment objectives:89● the lack of safe crossing options causes people to take risks potentiallyleading to death and serious injury;● improve connections to existing/planned walking, cycling and publictransport infrastructure to increase the choice of walking or cycling toaccess social and economic opportunities; and● maintain predictable and acceptable journey times and throughput tokey regional destinations (airport and CBD).[114] The Case for Change report calculated the theoretical increase in travel alongthe corridor due to the speed review would be 33 seconds. It acknowledged the actualimpact on speed would be lower as current average speeds along the corridor werelower than the current posted speeds.90 The report noted that travel times for the tworoutes that use this corridor were generally 10 minutes or more and that any increasein travel time associated with the change would not significantly change the time takento travel the corridor.88 At 21.89 At 9.90 At 27.[115] The Waka Kotahi decision making involved the concerned project managerusually developing a business case to assess the investment priority. The business casehere was prepared according to standard Waka Kotahi processes which enable theprioritisation of projects for funding from the National Land Transport Fund. There isa quality assurance process which, for projects less than $50 million, involvesassessment by investment advisors in the local government partnerships team ofWaka Kotahi. A Delegations Committee assesses the funding request and informationsubmitted to it. That committee is comprised of senior Waka Kotahi managers from avariety of business units. It relies on the assessment of the business case quality todetermine its readiness. The Delegations Committee provides recommendations tothe Chief Financial Officer in terms of the funding. The key question for theChief Financial Officer who receives the funding request is the expected affordabilityof the project.[116] The detailed delegation policy was set out in the affidavit of Mr HowardCattermole, the Chief Financial Officer for Waka Kotahi. Mr Cattermole isresponsible for all aspects of financial management, financial operations and financialplanning for Waka Kotahi. He also has responsibility for investment assurance andorganisational performance.91 He holds the management delegations to exercise thisstatutory power under s 20 to approve funding. He made the decision to approve thefunding. However, the decision-making also included input from the Business UnitManager.[117] Mr Cattermole described the decision-making in relation to the Waka KotahiCobham Drive crossing as follows:(a) The LGWM programme was included in the 2018 and the 2021National Land Transport Plan.(b) The Waka Kotahi Board endorsed the LGWM-recommendedprogramme of investment in October 2018. The Board paper noted that"at-grade Cobham Drive pedestrian and cycle crossing signals" and"setting safer speed limits (in the central city and on State Highway 191 Affidavit of Howard Lyndon Cattermole, 19 April 2022, at [3].east of Mt Victoria" had been identified by the LGWM governancegroup as one of a number of "low-cost improvements to be progressedin the short-term" as part of the programme.(c) In July 2019, the Waka Kotahi Board approved, subject to confirmationof funding availability and delegated to the Chief Executive, release offunding for the LGWM programme, including the development of earlydelivery packages of $3.9 million in the National Land Transportprogramme. An associated Board paper explained the purpose of theearly delivery programme is to make a start in implementing thestrategic approach of LGWM with works that could be delivered in theshort-term while the larger and more complex components of theprogramme was still being developed. The early delivery programmeincluded the Cobham Drive crossing.(d) Waka Kotahi released funding for the business case phase of theCobham Drive crossing project and, subsequently, the first versionbusiness case was completed in February 2020.(e) The Cobham Drive crossing was subject to Investment QualityAssurance by the Local Government Partnership team andWaka Kotahi which provided an Investment Quality Assurancestatement in relation to the business case.[118] The business case was approved by the Waka Kotahi/Delegations Committeewhich endorsed the next phase funding request recommending that the funding beapproved. The minutes record the reason for the recommendation:By investing in the improvements outlined, the key benefit will be animprovement to the safety along this section of State Highway 1, particularlyfor active mode users.● We note that the BCR92 is 1.2.● The requirements of s 20 of the Land Transport Management Act 2003have been met.92 Benefit Cost Ratio.[119] Mr Cattermole then recommended that the Chief Executive approve thefunding with total costs of $2.808 million for the construction of the Cobham Drivecrossing improvement from the walking and cycling activity class. Mr Cattermole inhis affidavit noted that the business case had a high alignment with the GovernmentPolicy Statement (GPS), in particular that since 2018 there had been a strategic shiftfrom "economic growth and productivity" to an emphasis on safety, environmentaloutcomes and mode shifts.93 "Mode shift" refers to getting people to walk or cyclerather than drive cars. Therefore, a pedestrian crossing designed to enhance pedestriansafety and increasing access to the new cycleway facilities which had been constructedalongside Cobham Drive was seen to be strongly promoting the GPS priorities andconsistent with the strategic shift in Government transport policy. In addition, theLGWM programme was included as a Government commitment in the GPS.[120] Consultation on the crossing took place from 30 June to 28 July 2021. Thematerials consisted of information about the project posted on the LGWM website, acopy of the Case for Change report posted on the website and a document headed"East of Mount Victoria. Consultation Document/30 June 2021. Safer speeds andCobham Drive Crossing", a 4-page summary of the preferred option inviting views onthe preferred option.[121] The "East of Mount Victoria" summary said: "We want your views on ourproposed crossing of Cobham Drive". Under the heading "Why was this optionchosen?" it said that:94 We investigated and weighed a number of alternatives to select this option.We considered four crossing locations, and crossings over, under, and at thesame level as the road. We have heard the community's calls for a bridge orunderpass crossing and considered these options, but neither can providesafety benefits in the short term. An initial analysis of costs and benefitsshows that a crossing controlled by traffic lights is the most cost-effective wayto provide a crossing. This option can be built the earliest, providing a safeway to cross as soon as possible. A crossing at road level will also be easierfor many people (including people using wheelchairs or with children inprams) as it doesn't need long ramps or stairs.93 At [53], referring to Waka Kotahi "New strategic direction: GPS 2018" <www.nzta.govt.nz>.94 As detailed in Mr Cattermole's affidavit at [64.3].[122] Also included was a feedback form headed "Have Your Say", which had aseries of questions about the crossing. The feedback could be provided on-line as well.The feedback form included the following questions:● Whether the proposed crossing would make the respondent more likelyto walk, run, bike or use a scooter for trips around the area;● Whether the crossing is located in the right area to help people getwhere they needed to go in the area;● What was the main relationship (home, visit, school) to the relevantportions of SH1;● How important is it to make changes to improve safety on StateHighway 1; and● What is the primary way that the respondent travel through the area.[123] The form also included room for general comments where the crossing shouldbe located and whether there was anything else that needed to be considered beforethe crossing was built.[124] In addition, there were also two public open days for consultation.[125] A summary of the submissions was prepared by a private company,Research First Ltd. LGWM also produced a 16-page summary of the relevant findingscalled "What is the feedback on the SH1 Safer Speeds and Cobham Drive CrossingProposals" dated August 2021. The summary recorded the following findings:● Overall, 50% of respondents believed it was important or veryimportant to improve safety along SH1 while 19% of respondents saidit was not important. Three-quarters of people who cycle believed itwas important to improve safety, and two-thirds of people who walk.● The way that people travelled through the area had a large bearing ontheir support for or opposition to the proposals. 73% of respondentsused a car as their primary mode of transport. A majority of thesepeople disagreed with the crossing, primarily due to concerns that itwould add to existing congestion in the area, with additionalcomments strongly indicating a preference for an overbridge. Therewere far higher levels of support for both the crossing and safer speedlimits from people who biked, walked or used a bus as their primaryway of getting around.● 50% of respondents said that the crossing would mean no change inwhether they were more likely to walk, cycle or run through the area.24% of people said they would be more likely more much more likelyto do so, while 22% said they would be less likely or much less likely.● 55% of respondents disagreed that the crossing was in the right place,and 25% agreed that it was in the right place. However, furtherinspection of additional comments indicated that many disagreeingrespondents answered that way because they disagreed with the typeof crossing proposed.● A significant proportion of people indicated they would prefer abridge to an at-grade crossing. Out of the total comments, 48% werefrom respondents who wished to see an alternative design built insteadof an at-grade crossing. Almost half of these respondents preferred abridge or overbridge. Of the 42% of people who had concerns aboutthe impact of an at-grade crossing on traffic-flow, roughly one quartersaid that the traffic in the area is already bad and believed that acrossing would make the existing congestion worse.[126] Waka Kotahi, under the banner of LGWM, prepared a draft business case.95This was described as a single-stage business case (lite), dated August 2021, for thecrossing project. For more substantial projects, LGWM used a more detailed businesscase report which would have provided more detailed analysis of cost risks andbenefits of the preferred option. However, the single-stage business case was chosenas appropriate for the projects identified as "early delivery" in the programme.[127] The August 2020 business case identified the project's scope as implementinga signalised crossing on SH1 (Cobham Drive) between Troy Street and Evans BayParade to provide for improved active travel connections between Miramar andKilbirnie, and reducing the relevant speed limits, including on Cobham Drive andCalabar Road from 70km/h to 60km/h. 96[128] The business case went on to say that the crossing was needed to addresspedestrian crashes and the proposal was to start construction in late 2021.97 It set out95 Waka Kotahi LGWM Three Year Programme – Cobham Crossing Improvement: Single StageBusiness Case (Lite) (August 2021).96 Affidavit of David Dunlop at [69.1]–[69.3].97 At [70].the findings from the summary document and the rationale suggested continuing withthe preferred option, despite concerns identified in the feedback, because, as detailedin the affidavit of Mr Dunlop:71.1 The primary reason was to "improve safety for vulnerable road userssuch as pedestrians and cyclists as soon as possible. It is particularlyimportant to fill in the current gaps in safer connections for peoplewalking, cycling, running, riding scooters or using wheelchairs."71.2 An at-grade crossing provides improved access for all active modeusers, including people with mobility challenges, as opposed to anoverbridge which requires indirect access due to the long ramps andgradients that are less accessible for people with limited mobility. Theless direct and accessible aspects of an overbridge solution wouldmean some active mode users would still cross informally 'at-grade'with associated safety risks.[129] The response to the submissions also noted that the modelling suggested thatthe time travel delay from the crossing would be minimal (an average of 15 secondsat peak, but likely much lower in off-peak times), compared with the projected33-second travel time delay associated with the change in speed limit. These delaysdid not consider the impact of adjacent intersections and congestion, which couldmean that at peak times the crossing and speed changes would not increase overalltravel times along this section of State Highway 1.[130] The business case noted that given the feedback it was important to monitorthe travel time delays and number of users of the crossing and review the case foralternative options at six-month intervals. It was "apparent that those who submittedin favour of a grade-separated solution are of the view that the delay will be far inexcess of the delay that the modelling has suggested." LGWM was consideringinvestigating alternative options and would need to ensure future investment is alignedwith wider LGWM investment decisions.[131] The business case went on to note that the impact on vehicles usingState Highway 1 was expected to be minimal since the crossing is a call only trafficsignal, meaning traffic is only required to stop when someone needs to cross. Thislow impact for vehicles was said to have been balanced against the impact onpedestrians and cyclists of doing nothing in the immediate future, which wassubstantial in terms of reduced access and deferred safety benefits.[132] The Response to the Submissions section concluded:LGWM is about providing people with a greater choice when making journeysand reducing their reliance on private motor vehicles. The recent investmentsby [WCC] in the Cobham Drive cycle and walkway will improve choice whengetting around the area using active modes, and the proposed crossing toconnect North Miramar with Kilbirnie will help to realise the benefits of thatinvestment.[133] Under the Choices of Preferred Option in the draft business case, the rationalefor the at-grade crossing, rather than a bridge or an overpass, which had been thepreferred option for many submitters, was given as follows:9872.1 it would realise safety benefits as soon as it could be constructed,within 6 months, while the bridge and underpass options would takeat least 3 years to plan, design and construct;72.2 it would deliver significantly more benefits as a proportion of costscompared to the grade-separated options;72.3 it would improve access (especially for mobility impaired people) andsafety for pedestrians and cyclists; and72.4 the construction and operational impacts of the signals and raisedplatforms were expected to have a minor impact on the duration oftypical journeys along the corridor.[134] The draft business case recorded that there were no issues raised in thefeedback that had not already been considered by the project team. It also noted thatvarious advocacy groups, including cycling and disability groups, were verysupportive of the at-grade solution. It specifically noted there had been a one-on-onemeeting with Wellington Airport, among others, but did not set out views expressed.[135] The business case then went to the LGWM Board on 1 September 2021. Asdetailed in the affidavit of Mr Dunlop, it:76.1 summarised the consideration of crossing location and crossing type(at grade or grade separated) that had been undertaken to produce thebusiness case;76.2 summarised why an at grade crossing was considered the mostappropriate option, because:(a) it would deliver improved access (especially for mobilityimpaired) and safety for vulnerable road users (pedestrians98 As detailed in the affidavit of David Dunlop at [72.1]–[72.4].and cyclists) within 6 months compared to approximately 3years for the grade separated options;(b) an at-grade crossing would provide improved access for allactive mode users, including people with mobility challenges,as opposed to a grade separated option which requires indirectaccess due to the long ramps and gradients that are is lessaccessible for people with limited mobility. The less directand accessible aspects of an overbridge solution would meansome active mode users would still cross informally 'at-grade'with associated safety risks';(c) if it did result in more local journeys being taken by foot andbike, then there would be less short local trips undertaken byvehicles which will lead to reduced congestion;(d) the operational impacts of the signals and raised platformswould be expected to have a minor impact on the duration oftypical motor vehicle journeys along the corridor - ourmodelling suggested a 15 second delay at peak based on anassumption of 250 pedestrian/cyclists making 125 crossingsper day - note there are signals all along SH1 within theWellington urban area and these proposed signals will be onlycalled when requested.76.3 explained that, although it would provide higher safety benefits, agrade separated crossing was not preferred at this time because:(a) the time and cost it would take to plan and construct theseoptions is far in excess of what can be achieved in a relativelyshort timeframe from an at grade crossing;(b) the additional safety benefits are not justified by the additionalcost which is an order of magnitude higher than an "at grade"crossing;(c) the research suggests that around 30% of people will avoidusing steps or ramps and will continue to make informalunsafe crossings at grade because grade separated options donot offer the most direct option;(d) a grade separated option would require resource consent andpotentially require property purchase which would delayimplementation and the realisation of any safety benefits;76.4 summarised the results of consultation, including a table identifying"key themes" from submitters.103 One of the key themes was that theproposal prioritises 250 pedestrians over 35,000 motorists daily,which was an opinion that the applicant expressed in its media releasedated 26 June 2021;76.5 identified as a "key risk" to the proposal the public opposition to theproposal and a proposed mitigation of making clear that LGWM hasheard the calls for a grade separated crossing and so will initiate adetailed feasibility investigation into alternative options and will alsomonitor for actual travel delay.[136] The LGWM Partnership Board paper, dated 1 September 2021, maderecommendations to the Board that it endorse the business case, subject to asatisfactory Investment Quality Assurance review (IQA) which was then currentlyunderway, to enable the project to go ahead to Waka Kotahi for funding approval. Thepaper noted that the risk of public opposition to the crossing was well known and hadbeen highlighted to the Governance Regional Group and a joint councillor briefingbefore June 2021, but that there had been strong support from these groups then andpost-2021.[137] The Board considered the business case. The minutes indicate the Board wasasked to endorse the business case before it went to Waka Kotahi for funding of theproject. The minutes note the Board were informed of the risks which indicated no"red flags".99 The Board suggested the wording of the recommendation be"strengthened" to show that an at-grade crossing was the first step in the process andthat "the investigation in relation to other options would be taken seriously". TheBoard noted the project team intended to include investigation of grade-separatedoptions in the detailed business case for the State Highway improvement/Mass RapidTransport (SHI/MRT) components of the LGWM package.[138] The Board ultimately:100• Endorsed the draft single stage business case light (SSBCL) forCobham Drive Crossing and Speed Review, subject to satisfactoryinvestment quality assurance review and inclusion of furtherinvestigation of alternative crossing options in the SHI/MRT detailedbusiness case.• Noted that the draft SSBCL will be submitted for approval ofimplementation funding by the Waka Kotahi Delegations Committeeat their 30 September 2021 meeting.• Noted that the ongoing monitoring will be implemented to verifyactual travel time impacts.99 LGWM Partnership Board Minutes, dated 1 September 2021.100 At 2.[139] The Board minutes also record in footnotes that it was agreed subsequentlythat, subject to funding, the investigation into alternative options should be completedsooner and the resulting solution implemented with the SHI/MRT solution.101 Inaddition, it was confirmed that the business case would go to the Waka KotahiDelegations Committee in October 2021 rather than September. 102[140] An initial scope for future work investigating Cobham Drive grade-separatedoptions (underpass or bypass for the crossing) was also approved by the LGWM Boardin November 2021. It was noted that options should build on existing work andinclude an assessment of integration with the preferred mass rapid transit andstate highway construction improvements programme, as well as the local road,walking and cycling network.[141] A revised business case was prepared and LGWM decided that the detaileddesign of the crossing should be fully complete before submitting the business case toWaka Kotahi for the funding decision, to avoid the potential need to go back for a costadjustment.[142] The revised business case was similar to the August 2021 business case butincluded a revised BCR for the signalised crossing, formulated on the indicative costbased on the detailed design work which had been completed. The business case saidthat the at-grade crossing remained the best option on that analysis. The Board paperaccompanying the business case updated the Board on the development of the project,including providing an updated economic analysis based on the new design whichnoted a BCR of 1.2, while that of a grade-separated option was 0.3-0.5. The businesscase said:103The BCR is particularly sensitive to the vehicle delay estimates and at anaverage delay of 2 seconds, the BCR reduces to 0.8. However, regardless ofthe comparative economics, the proposed crossing is still the only option thatwill achieve the objectives of safety, accessibility, reduced car reliance andassociated carbon emissions in the short term whilst we initiate aninvestigation into the longer term option.101 At n 2102 At n 2.103 LGWM Partnership Board Paper, dated 27 January 2022, at 6.Given the urgent need for a safe crossing as soon as possible, and the fact thatthe proposed option achieves key safety, mode shift and accessibilityobjectives of the GPS, Road to Zero, Council's sustainable transport hierarchyand the LGWM programme, we recommend that we proceed with theproposed at grade crossing as planned.[143] The Board paper said that LGWM was working with Waka Kotahi to assessthe funding for re-evaluation of the long-term options to feed into a detailed businesscase when there was more certainty around the SH1/MRT options in mid-2022.[144] The Board:104• Endorsed the updated Business Case;• Endorsed the funding application to Waka Kotahi for theimplementation costs of the Project ($2.808m).• Approved delegation to Mr Dunlop of authority to finalise thefunding application to Waka Kotahi submission to the Waka KotahiDelegations Committee; and• Approved the pre-implementation phase and support progressing toconstruction phase of the Cobham Drive Crossing and Speed Reviewproject.• Noted that an investigation of Cobham Drive grade-separatedoptions, costs and risks in light of current and future SHI/MRTinvestigations will be undertaken by the LGWM transformationalprogramme team[145] The speed review limit was notified in The Gazette on 4 March 2022 and putin place on 26 April 2022.105[146] I now turn to analyse the claims raised by the applicant in these proceedings.First cause of action — failure to consult[147] This cause of action has three prongs: first the failure to give sufficientinformation and opportunity to enable "full, intelligent and useful responses"; second,104 Email from Emily Quayle (LGWM) to Adam Howard-Brumby (Waka Kotahi) setting out the fullset of decisions (21 February 2022).105 New Zealand Transport Agency (Speed Limits on State Highways) Amendment Bylaw 2022/02,4 March 2022.to consider those responses; and finally, to make a decision with an open mind, beingprepared to change its position in response to those proposals.[148] The alleged failures of consultation are said to breach natural justice and to beagainst the interests of fairness. Wellington Airport says those considerations requiredLGWM to consult in a manner consistent with the local authority's statutoryobligations under the Local Government Act.106 However, the argument thatconsultation was required to be carried out in terms of the provisions of theLocal Government Act was not developed in detail in the oral or written submissions.[149] Rather, the relevant statutory framework relating to the decision made on thecrossing can only be that which applied to Waka Kotahi's decision on the activity (theconstruction of the crossing) and funding under the Land Transport Management Act.Local Government Act consultation requirements might have applied to the individuallocal authority members when making Council decisions in this case it was not arguedthat the consultation requirements under the Local Government Act were triggered.107[150] As I have detailed above, consultation does not envisage agreement nornecessarily involve negotiation, but what is necessary for proper consultation willdepend on the circumstances.108 As French J emphasised in Aorangi School Board ofTrustees, consultation is not litigation, "nor is it a process akin to that of discovery".109[151] In this case, the issue which was the subject of the consultation was theproposed signalised crossing. The Case for Change report which accompanied thepublic consultation documents in June 2021 set out the proposal for a signalisedcrossing and the evidence in support of that option as well as how it met the relevantobjectives. The proposal had already been developed through LGWM technicalprocesses including a Multi-Criteria Analysis (MCA) workshop held on 6 Septemberand 19 September 2019.106 Section 82.107 Those consultation requirements would likely have applied to the Regional Council's consultationon the Regional Transport Plan; however, that is not under scrutiny in this case.108 Wellington International Airport Ltd v Air New Zealand Ltd, above n 22, at 672 and 676.109 Aorangi School Board of Trustees v Minister of Education, above n 28, at [60].[152] The agendas and records of the decision of the recommendation of the MCAworkshop were produced in evidence.110 The attendees were a diverse group andincluded technical experts. These included a technical Safety Manager who hadsubject matter expertise in traffic control devices, the Waka Kotahi Network Advisor,a safety engineer, as well as urban design experts and the relevant project managers.Included in the group were representatives of interest groups such as a taxi driver anda truck driver, a representative of the disabled community and the pedestriancommunity, cyclists and an affected neighbour and a Kilbirnie resident.[153] The workshop group had before it statistical information in relation to thecrossing proposal. This included an overview of the crashes in the vicinity from 2009to 2018. A fatal pedestrian accident was included in the material, as well as 11 seriousinjuries, 42 minor injuries and 149 non-injury incidents, a total of 203 incidents. Theseincluded 49 per cent rear-end accidents and 20 per cent crossing turning accidents.[154] Also illustrated were informal crossing and access locations which had beenused by pedestrians in the stretch of Cobham Drive where there were no formedcrossings. Various options were put before the attendees at the workshops. Thematerial generated from the Austroads pedestrian facility tool indicated that anycrossing constructed would have to be signalised. A zebra crossing was notrecommended by that tool.[155] The material indicates that, following the workshops, the community would beasked which location they preferred for the interim signalised crossing. The publicengagement was to coincide with engagement on "safer speeds" for the state highwayeast of Mt Victoria.[156] The objectives developed in the MCA workshops were recorded in asubsequent LGWM System Design Improvement memo, dated 16 December 2019, asfollows:111110 LGWM "SH1 Cobham Drive pedestrian/cycle crossing: September 2019"; and LGWM "SH1Cobham Drive pedestrian/cycle crossing MCA (multi-criteria assessment) Workshop 1: Friday 6Sept 2019".111 System Design Improvement memo, dated 16 December 2019.● Improve safety for people walking and cycling between Miramar andKilbirnie via Cobham Drive.● Improve connections to existing/planned walking, cycling and publictransport infrastructure to increase the choice of walking or cyclingand to access social and economic opportunities.● Maintain predictable and acceptable journey times and throughput tokey regional destinations (Airport and CBD).[157] Waka Kotahi says the requirements of consultation were amply met by:(a) the MCA workshop; and(b) the preparation of the Case for Change report that provided extensiveinformation on the proposal;[158] It says that:(a) sufficient time was allowed for consultation;(b) 3,500 submissions were received; and(c) a 43-page feedback report, 16-page consultation summary, and thereflection for concerns in the business cases and Board documentsdemonstrated that consultees' submissions were listened to.It is noteworthy that the proposed ramp which was part of the original proposal in theCase for Change report was removed following consultation. Wellington Airport hadexpressed particular concern about it acting effectively as a "speed bump" and addingto vehicle delays.[159] Waka Kotahi says it was entitled to rely on its technical analysis and that theconsultation proceeded on the basis that the Case for Change report was, in essence,an externally facing summary of the technical work that LGWM had done to date. Itsays an obligation to provide the underlying modelling is inconsistent with theprinciple that consultation is not discovery or a litigation process. The respondent saysthat Wellington Airport is seeking to peer review the expert decision-making bodies'technical analysis and that is not appropriate here.Wellington Airport's submission[160] Wellington Airport submitted a detailed submission to the consultation,strongly supporting walking and cycling access safety but suggesting an overpass wasthe best safety solution. The submission emphasised that the best solution (not thefastest or cheapest solution) should be implemented. It indicated the communitywanted an overpass but that had not been significantly considered. It queried thenecessity of building an overpass that was 200 metres long and 6 metres high and$10-$17 million in cost and suggested that an alternative simpler design solutionshould have been considered.112 Wellington Airport also indicated that, contrary toLGWM's reason for not choosing to construct an overpass, there should be no needfor property purchases and the visual impact could be mitigated through good design.[161] Wellington Airport said traffic would need to slow to approximately 40km/h todrive over the raised crossing platform that was proposed and that such a raisedcrossing could become a target for unseen objects for vehicles travelling at high speedsuch as boy racers, creating new safety issues.[162] Wellington Airport's submission went on to note that the crossing prioritised250 walkers and cyclists over 35,000 motorists and indicated that it would furtherincrease congestion and delays for the 35,000 motorists. It noted even when thecrossing is not in use the raised platform would require speeds to be reduced from theproposed 60km/h to 40km/h, which was estimated to increase delay by one second pervehicle, which Wellington Airport said it considered was underestimated.[163] Wellington Airport also said that the economic evaluation should be revised totake into account corridor speed reduction benefits and costs, travel time reductionsassociated with the raised crossing when not in use and adjustments to the value oftime which it proposed. It submitted the present value of time calculated byWaka Kotahi ($0.3m) was too low and that for savings of time for pedestrians and112 I note here that Waka Kotahi had suggested those dimensions in view of the traffic requirements.cyclists was too high if different assumptions were adopted. It indicated that theexisting cycling and walking routes were adequate in the meantime and safety hadalready been improved and could be improved further without a crossing, by forinstance proper signage, introducing planting or barriers along Cobham Drive whilecontinuing to consider the medium term option of an overpass.[164] Wellington Airport rejected the crossing solution as an interim answer, sayingthat there would be significant disbenefits in the meantime and given the risks ofinertia and slow progress that had been made to date, the interim solution might endup being semi-permanent.[165] Following the release of the post-consultation summaries, Wellington Airportwrote to the Chair of the Board of Waka Kotahi setting out its concerns and givingnotice that if the decision was not reconsidered, it would consider legal avenues tochallenge the decision, which it said was "poorly thought through, pre-determined dueto political and ideological considerations, and not based on sound evidence oradvice".Consultation summary[166] The submissions were summarised in a report titled What is the Feedback onthe SH1 Safer Speeds and Cobham Drive Crossing Proposals?, dated August 2021.113The summary noted the large number of responses from individuals, engagement byorganisations and coverage in the media.114 The summary recorded the concerns aboutthe crossing proposal and 45 per cent of respondents mentioned the desire of analternative crossing.115 42 per cent raised concerns about the effect on traffic andcongestion.116 10 per cent provided other alternatives or suggested improvements tothe proposal. The traffic flow was the top-of-mind issue put forward by surveyrespondents. The report said that different submission groups had different concernsin particular areas and the splits depended on the primary mode of transport of therespondents, the potential effect the crossing might have on them and the suburb in113 Research First Ltd What is the Feedback on the SH1 Safer Speeds and Cobham Drive CrossingProposals? (research report, August 2021).114 At 4. 3,466 survey responses and 52 additional submissions were received.115 At 13.116 At 13.which the respondent lives.117 It noted that half of the respondents whose primarymethod of transport in the area was the active mode or bus or who said the crossingwould make them more likely to walk/run/bike/scooter in the area suggested theywould prefer an alternative to the crossing.[167] LGWM also prepared a consultation summary outlining the process to date andnoting the key themes on a crossing proposal were:118● A preference for an overbridge or underpass rather than an at-gradecrossing.● Concern that the crossing would add to existing congestion.[168] Further themes rendered were concern that the crossing and lower speed limitswould cause tail-backs through the roundabouts and safety concerns for users anddrivers.119Context[169] The decision on the crossing must be seen in the context of the wider planningand strategy that was being undertaken by LGWM and Waka Kotahi. The consultationinvolved in the wider planning and strategy was not under consideration in thisapplication. The consultation under examination here was one "activity" asWaka Kotahi describe it: a pedestrian/bike crossing for Cobham Drive which was builton earlier work and targeted consultation such as through the MCA workshops.[170] The technical work by Waka Kotahi had been carried out using assumptionsand tools that it considered were appropriate for the activity at hand. It had formed aproposal which it set out in the Case for Change report. The MCA workshops hadalready been carried out which confirmed that a crossing was required in theshort-term rather than waiting until an overpass or underpass could be consented andbuilt, which was estimated to be five years away. The longer-term strategy involvingMRT was at least 10 years away.117 At 16-17.118 LGWM Cobham Crossing and Speed: Consultation Summary (25 August 2021) at 10.119 At 11.[171] The consultation documents reflected that technical work and stated:(a) a crossing was needed for safety purposes;(b) the business case supported a level crossing; and(c) safety issues dictated it should be constructed in the short-term.[172] The decision-making in question involved a two-step process. The first wasthe decision by LGWM to approve the business case which would enable the proposalfor approval and funding of the activity (the construction of the crossing) to be put toWaka Kotahi for the second decision. The latter was a statutory decision but theLGWM endorsement formed part of the information upon which the statutory decisionwas made.[173] There was some criticism by Wellington Airport of the decision-makingprocess. It said it was an "inappropriately blended decision-making" process. Theallegation was not pursued in submissions but was referred to by Mr Dunlop in hisaffidavit. In my view there was no error in the "two-step" decision-making. Therelationship arrangements were a sensible approach to ensuring that all parties with aninterest in the transport issues were kept informed and approved the various projectswhich fed into the whole LGWM strategy. The board members brought financial andtransport expertise to the table and in addition the programme director Mr Dunlop wasavailable to answer any questions.120 The Board therefore brought to bear a variety ofknowledge, experience and representation in the consideration of the business case.Under the structure established it was the appropriate body to consider the businesscase. It had before it the Board papers, including the business case, which providedan adequate overview of the issues, provided adequate analysis and made the relevantproposals. The Board minutes indicate the Board was seized of the issues. It delayedits decision-making until further information such as costs was available. It alsoindicated it wanted its decision to record that the further investigations of grade-separated options in light of current and future SHI/MRT investigations would bemade.120 See <www.lgwm.nz/about/who-we-are/>.[174] In turn, the Waka Kotahi statutory decision-making process appears to havemet the statutory requirements of s 20 of the Land Transport Act and the relevantdelegations in place internally in Waka Kotahi.[175] Wellington Airport says that it was entitled to the detailed results of therespondent's traffic modelling and data as well as the business case and the modellingdone on another tool, SIDRA. It says because it did not have that material it did nothave the opportunity to make "intelligent and useful" submissions. It acknowledgesit was provided with a printout of the Austroads tool.[176] It will be for the Judge hearing the final application to determine the merits ofthe application for judicial review. However, a preliminary review for the purposes ofthis application indicates that given the context of the consultation there wassignificant material particularly in the Case for Change report to enable submitters tomake informed decisions. The issue whether the material sought was in the contextsufficient to inform Wellington Airport fully and fairly of the proposal, bearing inmind that the consultation exercise is not a peer review, will be an issue for the finalapplication.[177] Wellington Airport also says that the LGWM Board did not have adequateinformation before it to make its decision endorsing the business case. In particular,Wellington Airport says the Board was not made specifically aware ofWellington Airport's opposition to the signalised level crossing, that an overpass wasa safer selection and that was the option overwhelmingly desired by the community,and that the crossing was not properly costed, nor was the cost of delay for motorists.In addition, Wellington Airport says assessments of the downstream effects such astail-backs to nearby roundabouts were not properly made.[178] The material before the Board included summaries of those issues in generalterms. While Wellington Airport was not mentioned in particular as opposing theproposed crossing, the Board was clearly informed there was a significant oppositionto the crossing and that there was a higher preference for an overpass.[179] This issue will no doubt be examined in a greater level of detail at the fullhearing, but for present purposes the evidence does not indicate a strong case on themerits.Errors in the modelling[180] Mr Kieran Murray is an economist and gave evidence as an expert.121 He hasexamined the BCR assessment and the LGWM business case upon which the crossingpretext was based. Mr Murray's main criticisms related to the methodology andassumptions used by Waka Kotahi, and the use of Austroads tool.[181] Waka Kotahi responded with evidence from Mr Samuel Thornton, aprofessional engineer and chartered member of Engineering New Zealand Te AoRangahau.122 He is the principal transport engineer at WSP New Zealand Ltd(formerly Opus International Consultants Ltd). He was personally engaged inupdating the business case for LGWM. He responded to Mr Murray's criticism in hisaffidavit, saying there were no errors, wrong assumptions and that the Austroadspedestrian crossing facility selection tool was appropriate for the project.[182] The Court is not here in a position to determine the merits of the technicalissues contested. However, Mr Thornton has rejected Mr Murray's criticisms,particularly those in relation to the selection of assumptions and inputs and use of theAustroads tool. Mr Murray acknowledged the choice of assumptions and inputs wasa matter of professional judgment and he disagreed with the choices. Mr Thorntonalso explained the calculations which Mr Murray had said were incorrect. Thatexplanation which meant the calculations were correct was uncontradicted inMr Murray's reply.[183] Waka Kotahi said, it was for it to choose the most appropriate methodologyand assumptions in the circumstances. The legislation does not prescribe themethodology and it is a judgment call for the statutory decision-maker as to what isbest suited in the circumstances. It says it is an expert in the area and is entitled to a121 Affidavit of Kieran O'Neill Murray, 5 April 2022.122 Affidavit of Samuel Robert Thornton, 26 April 2022.margin of appreciation similar to that of the Commerce Commission as stated inNZME Ltd v Commerce Commission.. 123 The choice of the Austroads tool, rather thanthe SIDRA tool, was a judgment call which was for Waka Kotahi to make.[184] Waka Kotahi also says the criticisms of the BCR analysis must be taken incontext. The BCR analysis involves placing a monetary value on things that are noteasily valued. It is merely a tool to assist decision-makers, providing one particulartype of information about decision-making, among many other sources of information.Mr Cattermole explained how the BCR analysis was a tool to assist with the analysisof whether the investment was efficient, one of the statutory criteria under s 20 of theLand Transport Management Act. However, there is room for judgment over any BCRcalculation and there will often be room for more than one view in such an analysis.124The business case presented to the decision-makers made it clear that the BCR in thiscase was especially sensitive to vehicle delay estimates.125 There may well be minorerrors in aspects of the BCR calculation but, in context, any error is unlikely to besignificant nor affect the outcome.[185] Mr Murray also criticised certain assumptions relied on in the modelling, suchas the choice of 250 days rather than 365 days a year for an input in the model. Thechoice of which assumption to adopt will be a judgment call and Mr Thornton hasexplained his reasoning for the choice of 250 which are the working days in a year.[186] In summary on this point, Mr Thornton, an expert in the area of transportplanning and engineering, has answered in detail in his affidavit most of the concernsraised by Mr Murray in his evidence. It will be for the trial Judge to consider thesematters in more detail.[187] It will be a matter for the trial Judge but for the purposes of this application itseems that there is a reasonable argument that substantial and relevant informationwas provided in the consultation given the subject matter and the context.123 NZME Ltd v Commerce Commission [2018] NZCA 389, [2018] 3 NZLR 715 at [110].124 CreedNZ Inc v Governor General, above n 38, at 211. McMullin J commented on the fact thateconomic views and assumptions allowed room for more than one view: at 211.125 See [143] above.Second cause of action — failure to consider relevant considerations[188] I can deal with this ground in short order, as the failure to take into accountrelevant considerations is related to the consultation head and largely repeats thearguments made in relation to consultation.[189] In addition to the above, however, Wellington Airport suggested a mandatoryrelevant consideration was whether the proposal would in fact prevent the kind ofcrash that had resulted in the pedestrian fatality in 2016. However, Waka Kotahi wasnot required to demonstrate that the 2016 fatality would likely have been preventedhad a crossing been in place. Consideration of the safety impacts was certainly asignificant issue throughout the decision-making and was clearly set out in both theCase for Change report as well as the business case before the Board. Whether specificconsideration was required to be given to this matter is an issue for the full hearing.However in this matter it is clear that there were established safety concerns becauseof the lack of a crossing.[190] Similarly, Wellington Airport suggests that Waka Kotahi was required to assesswhether the crossing would be inconsistent with an MRT solution. The developmentof the MRT strategy was a longer-term development. There is nothing preventing theimplementation of short-term activities as envisaged in the LGWM three-year plan.In addition the board indicated that the longer term options needed to be borne in mindand progressed.Failure to take into account the Traffic Control Devices Rule[191] The applicant also contended that TCD Rule was a necessary prerequisite tothe decision to fund and construct the crossing.[192] The rule specifies requirements for the design, construction, installation,operation and maintenance of traffic control devices and the functions andresponsibilities of road control of authorities in providing traffic control devices "togive effect to their decisions on the control of traffic".126 A "traffic control device"includes a traffic signal.127[193] The applicant says that the Rule is a mandatory relevant consideration forapproving the installation and operation of traffic control devices and thatWaka Kotahi could not make a decision to proceed with the construction of signalisedcrossings without first satisfying itself that the requirements had been met — inparticular, that lights in that location would be "desirable", "contribute to the safe andeffective control of traffic" and be "appropriate for the road". There is no record ofany consideration by Waka Kotahi of the rule.[194] The TCD Rule was made by the Minister pursuant to s 152 of theLand Transport Act. That section provides for the Minister to make rules concerningroads, regulate their use and to provide for the design, construction, maintenance andoperation of traffic control devices.[195] The Objective of the TCD Rule reads as follows:Land Transport Rule: Traffic Control Devices 2004 specifies therequirements for the design, construction, installation, operation andmaintenance of traffic control devices, and sets out the functions andresponsibilities of road controlling authorities in providing traffic controldevices to give effect to their decisions on the control of traffic.This rule clarifies, consolidates and rationalises the existing requirements fortraffic control devices. It addresses the risks to land transport safety arisingfrom the use of traffic control devices.The objective of the rule is to contribute to a safe and efficient road networkby ensuring that traffic is controlled by means of traffic control devices thatare safe, appropriate, effective and uniform and are applied in a consistentmanner.The purpose of this rule is to contribute to the safe and efficient operation ofour road network by:- requiring uniformity in the form, appearance and placement of trafficcontrol devices;- establishing minimum standards for traffic control devices;- specifying who may authorise and install traffic control devices;126 Land Transport Rule: Traffic Control Devices 2004, r 1.2.127 Rule 6.1.- ensuring that road controlling authorities have regard to safe practicein the design and installation of traffic control devices and how theyare used for traffic management.The rule states who is responsible for ensuring compliance with itsrequirements: road controlling authorities, rail operators, operators ofhand-held 'Stop' signs, school patrols and all other road users.[196] Rule 2.1(2) states:2.1(2) A road controlling authority may authorise and, as appropriate, install,operate or remove traffic control devices:(a) if desirable for the guidance of traffic or to draw attention toa requirement that controls traffic; or(b) to provide information to road users.[197] Waka Kotahi says that it is obvious that it considered a signalised crossing was"desirable for the guidance of traffic". Waka Kotahi said it had undertaken thenecessary safety assessment to satisfy itself that the signalised crossing wasappropriate. It pointed out that another feature of the Austroads tool, as is apparentfrom the affidavit of Mr Thornton, includes "feasibility analysis", which indicates theappropriate crossing types given variables relevant to the crossing, such as the speedlimit of the road. Waka Kotahi says this also points to it being sufficiently satisfiedthat the signal was "desirable", in the terms of the rule.[198] This issue will be for the Judge hearing the full application to determine.However, as Clifford J, in considering the rule in Hutt City Council v O'Connor,concluded:128 The TCD Rule is, properly interpreted, intended to relate to the devicesused to give effect to decisions relating to the control of traffic (traffic controldevices) as opposed to empowering the making of those decisions.Accordingly, even if it was found that Waka Kotahi did fail to properly consider theTCD Rule, on its own this issue would not seem to me to highlight a fatal error in thedecision-making.128 Hutt City Council v O'Connor [2014] NZHC 2290 at [28] (emphasis added).Third cause of action — unreasonableness[199] I have outlined briefly the law in relation to public law unreasonablenessabove. I am of the view that my analysis for unreasonableness directly from myanalysis of the other heads of review. As will be evident, my initial assessment is thatthe decision does not represent one that reaches the high threshold of being "sounreasonable no rational decision maker could have come to it" and as such do notmake any further assessment of this head of review at this stage in the proceedings.Fourth cause of action — fettering/constrained process[200] In this case there was a preliminary decision made by LGWM to approve thebusiness case for the construction of the crossing. While each of the members of thepartnership were established and governed by legislation, including Waka Kotahi, theobject of the partnership appears to have been to cooperate and bring the members'joint expertise and representation to bear on the project under examination. The onlystatutory decision was made by Waka Kotahi to both construct and fund the crossing.[201] The applicant in this case alleges that the discretion both of LGWM and ofWaka Kotahi was fettered because the decision was the result of a "constrainedprocess". The constraints alleged were that LGWM was under pressure to achievevisible progress on "early delivery projects", to deliver a solution for Cobham Driveas soon as possible and to meet commitments made to the Minister of Transport tostart construction on a Cobham Drive solution in 2021. It is alleged that theseconstraints led to consultation on only one option for the Cobham Drive crossing.[202] Fettering is further said to be supported by the fact that Waka Kotahi approvedpre-implementation expenditure on the crossing before the public consultation wasconducted. In addition, LGWM chose to analyse the proposal using a "lite" businesscase model which was not suitable for the nature of the project and improperlyconstrained the analysis. This foreclosed enquiry into other options that would deliversafety options quickly (such as barriers) or a crossing that would be consistent withthe long-term MRT while LGWM investigated alternative long-term options. Thecombined effect of the decisions and considerations pleaded by the applicantprecluded the ability of LGWM and Waka Kotahi to make any decision other than toproceed with the crossing on Cobham Drive.[203] Wellington Airport points to the political pressure to get an early deliverableand says that influenced LGWM and Waka Kotahi to decide on a suboptimal crossing.Wellington Airport points to comments in the business case and says that thedocumentary record shows that LGWM and Waka Kotahi took into account:(a) delays caused by LGWM's own internal processes;(b) political pressure and reputational implications arising out of thosedelays;(c) LGWM's failure to make meaningful progress on projects elsewhere inthe city; and(d) commitments made on behalf of LGWM Board to the Minister thatconstruction would begin by a certain time.[204] It points to documents such as the Waka Kotahi business case which refers toLGWM being under considerable pressure to deliver and the Cobham Drive safetyimprovement is seen as an early deliverable to make considerable safetyimprovements "as well as gaining goodwill for LGWM". The business case refers tothe significant two-year delay caused by the LGWM health review and COVID-19. Italso refers to promises made to the Minister on behalf of the LGWM Board thatconstruction would begin in 2021 and the project facing significant political pressure,with both central and local government critiquing all aspects.[205] At the same time, the business case focuses on the benefit of implementing an"at-grade signalised crossing as soon as possible to achieve the safety benefits". Itnotes that the at-grade crossing is the best-performing against investment objectives,"realising benefits and value for money, keeping in mind current demand".[206] In simple terms, the fettering is said to be because only a signalised levelcrossing was considered. While there were a number of options for crossings (forinstance, a zebra crossing, which did not have signals or an overpass/underpass), theproposal for a crossing was predetermined, the consultation narrowed, and thedecision fettered because of that. That fettering is said to have occurred because ofthe need to show "early delivery" of the project and political pressure.[207] From a public law point of view, the claim appears to suggest predetermination,which is not specifically pleaded, as well as a fettering by permitting an outsideauthority to have a determinative say in the matter — in this case, the Minister — aswell as the need to provide an early project delivery. The allegation is these influencesworked to constrain LGWM and Waka Kotahi's discretion in decision-making.[208] However, Wellington Airport does not suggest there was a direct ministerialdirection to construct the crossing but merely pressure brought to bear to deliver aresults quickly. The evidence does not support the allegation of fettering in the publiclaw sense at this stage. Moreover, even assuming there were some errors in thebusiness case, it remains clear that the technical documents, including the MCAworkshop materials and the business case, suggested an overpass or underpass wouldbe significantly more expensive, even if scaled down as suggested byWellington Airport. An overpass would also not be completed for some years and,therefore, the safety issues would remain, in general terms, not addressed. A crossingof some type was always intended to be an early deliverable.[209] The fettering of discretion requires something more than a recognition ofreputational risk and political pressure to deliver. No doubt this issue will be thesubject of more detailed submissions. However, the material provided to date wouldnot support an allegation that Waka Kotahi was "acting under dictation".Provisional assessment on the merits of the substantive application[210] At this interim stage I cannot make definitive findings on the strength of theapplication for judicial review. However, my preliminary assessment based on thematerial before me indicates that the case is not unduly strong it should be borne inmind that while I have heard considerable argument on this matter, this is not the finaldetermination of the application and my views are based only on the information Ihave before me.Interim relief[211] The factors governing whether or not interim relief should be granted requireconsideration of the statutory threshold of whether the necessity to preserve theposition of the applicant has been achieved. There is then a wide discretion, whichwill include all the circumstances of the case, including the strength or weakness ofthe claim, the public interest and the private and public repercussions of granting relief.[212] I therefore now turn to consider the statutory threshold.Necessity to preserve the position of the applicant[213] The applicant says that it would be affected because the vehicle movements toand from the airport make up approximately half of the 35,000 vehicle movementsalong Cobham Drive each day.[214] The cost of the time delay was estimated by Waka Kotahi at $340,000 for thepurposes of its analysis. Wellington Airport says that is far too low. The difficultiesof establishing the cost of time delay are myriad. It is an involves a number ofassumptions which require judgement calls.[215] Wellington Airport says not only will airport customers be affected by delays,but businesses based at the airport, such as the hotel, as well as residents and otherbusinesses, such as taxis, will be affected. It purports to be representative at somelevel of all of those interests.[216] The manner in which Wellington Airport is said to be affected may besummarised as follows:(a) delays to its customers who are taking and returning from air travel,who travel to and from the airport;(b) delay inconveniencing travellers to and staff at businesses operating atthe airport, such as the hotel, to and from the airport;(c) taxis and other small and large businesses who operate from the airport(whom Wellington Airport is said to informally represent) will suffertraffic delays, and these will detrimentally affect their businesses;(d) increase in the commute time in motor vehicles to and from the airportwill affect the airport commute time which will in turn adversely affectthe general reputation of the airport, which will flow on to the airportservices; and(e) residents (whom it also is said to informally represent) will face trafficdelays in their commuting and travelling in the relevant localities.[217] In addition, Wellington Airport noted that one of the effects of allowing theconstruction of the crossing to commence might be to delay a better solution for thecrossing such as an overpass or even the MRT strategy. This arguments rests on thesuggestion that once the immediate problem of safety for pedestrians and cyclists isdealt with by constructing a level signalised crossing the pressure for a medium- orlonger-term solution will be allayed. In addition, the applicant says that it is not in thepublic interest that Waka Kotahi use public funds for construction when the projectmay well be stopped by a final injunction.[218] The period for which the position is to be preserved is from the commencementof construction. While the hearing is set down for 20–21 July 2022, a decision willnot be delivered until some time after that. The period for which the interim order issought amounts to almost three months, including the time that Waka Kotahi hasagreed to delay construction pending the outcome of this decision.[219] Turning to the factors raised by Wellington Airport, the overriding factor isdelay. I do not consider the translation of the delay into a net present value is of muchassistance in assessing whether there is a position to be preserved. That delay is anintangible factor, and while monetising it is appropriate for the purposes of a businesscase, to do so for the purposes of this analysis leads the Court to an assessment of thefinancial implications. This was an assessment which was required to be carried outin the Criminal Bar Association case. In that case even with information suggestingthere would be significant financial implications for some legal aid providers, theCourt was not satisfied and required firm evidence as to actual costs. That cannot besupplied here.[220] Nevertheless, delay is an issue. No doubt there will be delays caused by theconstruction at some level. However, with the lowering of the speed limit, it is difficultto assess the level of the delays, as there will be a need to slow on both the approachesand through the relevant area in any event. Considering the evidence that has beenproduced, I am not persuaded that the delay would be significant in terms of theestimated trip to and from the airport and Wellington city. As a general observation itcompares favourably with the transport time to and from airports in many otherNew Zealand cities. The additional delays suggested even by Mr Murray's higherassumptions suggests the average delay will be measured in seconds. I do not considerthe delay supports a position to be preserved by the airport. Nor do I consider thatdelays contributing to the less tangible airport "reputation" and similar factors aresuch as to amount to a position to be preserved.[221] I accept there will be delays caused to traffic by the construction between nowand the substantive hearing. That will be dealt with on the basis of a tailored trafficmanagement plan. However, at most this will cause inconvenience and frustration. Ifthe applicant is successful in obtaining final orders in due course, the construction willbe stopped and any longer-term detriment to Wellington Airport by the crossing willnot eventuate.[222] The issue of whether Waka Kotahi should spend public funds on theconstruction when there is a possibility it may not be allowed to proceed, or at leastwill be delayed, is a matter in favour of granting an injunction. Indeed, it is a matterwhich might properly be taken into account in the exercise of my discretion. However,I do not consider it adds greatly in favour of granting an interim injunction. First, as Ihave indicated I do not consider the merits of the case are strong at this stage.Secondly, Waka Kotahi is charged with management of the funding. It is noteworthythat it has made an assessment that it wishes to continue with construction despite theapplication. It has a construction timetable that no doubt it wishes to keep to, andevidently it considers the risk is worth taking. It has also considered the options fordeconstruction if the application is granted and these would cause minimal disruptionto traffic.[223] In the course of argument it was suggested that a factor relevant to preservingthe position might be the safety of pedestrians and cyclists. This is largely becauseWellington Airport says the crossing is a suboptimal solution. However, it is commonground that Wellington Airport's preferred option of an overpass is some years downthe track. Therefore, the safety factor is also not a factor weighing in favour of thegranting of an interim injunction.[224] I am not persuaded that Wellington Airport has any position to preserve in thecircumstances. There will no doubt be delays to traffic if construction is commencedimmediately by the road works required for the construction that will be in place untilNovember 2022. However, that disruption would be caused regardless of the natureof the crossing constructed. While there is an argument to say that it may result inanother lot of construction if it is determined an overpass should be built, I do notconsider that is a significant consideration at this stage of proceedings.[225] Conversely, from the point of view of Waka Kotahi, there has already beenconsiderable delay and it is necessary to move to deal with the safety issues in a timelymanner. The safety concerns that inform the decision to construct the crossing remain.It has put in place arrangements to undertake the construction. The presentarrangements allow the construction to be completed before the Christmas period. Itappears to me this factor also weighs in favour of dismissing the application, althoughit is more appropriately a matter to take into account in the exercise of my discretion.[226] Therefore, I do not consider the statutory threshold has been met.Discretion on the circumstances of the case[227] If I am wrong, I go on to consider the discretion.[228] First, as I have outlined above, I do not consider that the merits of judicialreview are strong.[229] Other considerations which would lead me to a conclusion that the balancefavours dismissal of the interim application are that the crossing accords withWaka Kotahi's guiding principles, the Government Policy Statement onLand Transport and the LGWM plans.[230] The public interest appears in general terms to be served by the construction ofthe crossing. Safety is an overriding factor in favour of the construction of the crossingas proposed and has been throughout. There have been delays in bringing this projectto fruition. Regardless of the cause of those delays, they have added to the urgency ofconstructing a crossing on this portion of State Highway 1. The applicant says thereis no evidence that the crossing proposed will provide safety for pedestrians andcyclists, given the fatality and the other accidents do not appear to have been on thesite or close to the proposed crossing. However, Waka Kotahi is the expert in thesematters. Its expert evidence was uncontested insofar that the proposed crossing wouldincrease the safety of pedestrians and cyclists seeking to cross State Highway 1. It hasalso carried out detailed analysis of the best place to site the crossing. While there wassome criticism of the location, there was no expert evidence or analysis as to why theparticular location was inappropriate other than the suggestion that Waka Kotahishould be required to prove that it would prevent fatalities or accidents. Even commonsense dictates that a signalised crossing must improve the safety for those pedestriansand cyclists.[231] I also note that while Wellington Airport submits that the interests of theestimated 35,000 motor vehicles per day passing over the relevant stretch ofState Highway 1 should have been accorded more weight than the estimated250 cyclists and other pedestrians using the area, the encouragement of pedestriansand motorists is a high priority in the LGWM overarching strategy and an importantfactor in the decision to build the crossing. This factor also weighs in favour ofdismissing the application.[232] In addition, while in the general scheme of things the date for hearing of thefull application is reasonably soon, it is still over two months away. If the applicationwere to be granted, construction time over that period would be lost, and, given thelength of delay already, even that delay weighs in favour of commencing theconstruction now.Conclusion[233] In conclusion, I am not satisfied that the applicant has a position to preserve. Itherefore do not consider the statutory threshold has been met. In any case, thecircumstances of the case, including the strength of the application for judicial reviewand the circumstances, also indicate I would exercise my discretion against grantingan interim injunction.[234] Accordingly, I conclude that the interim injunction should be dismissed.Costs[235] Counsel agree that costs should follow the event on a 2B basis. I orderaccordingly and certify for a junior counsel.____________________Grice JSolicitors:Morrison Kent, WellingtonStout Street Chambers, WellingtonChapman Tripp, WellingtonWellington City Council, WellingtonGreater Wellington Regional Council, WellingtonAttachment