Summary
The High Court dismissed an application for judicial review of the Wellington City Council’s (“Council”) installation and maintenance of the rainbow crossing (“Crossing”). The Court found the Council acted lawfully when it installed the crossing and was permitted to continue its maintenance.
Background
The Council sought advice from the New Zealand Transport Agency (“NZTA”) on the Crossing. NZTA informed the Council it would be unlawful under the Transport Rule on Traffic Control Devices (“TCD Rule”) and threatened enforcement action if it was installed. The Council installed the Crossing in October 2018, but NZTA did not pursue enforcement action.
Over the next few years the Council continued to communicate with NZTA on compliance and possible alternatives to the Crossing. The Council conducted surveys of pedestrian and vehicle use of the intersection, and communicated with NZTA regarding a possible exemption to the TCD Rule. No exemption was granted or declined, though draft NZTA documents from the time indicated an intention to decline an exemption, on safety grounds. During this time NZTA maintained its view that the Crossing was not compliant with the TCD Rule and a subsequent amendment in 2020 (“2020 Amendment”).
The 2020 Amendment permitted road art in lower-risk environments, so long as the art did not resemble other markings intended for traffic control. Following the 2020 Amendment, the Council conducted more surveys which showed that vehicle speeds through the intersection were reasonably low and trending down. These surveys also showed that the Crossing did not influence pedestrian behaviour when crossing the road.
In 2024, three “concerned Wellington ratepayers” applied for judicial review of the Crossing. They sought a declaration that it was contrary to the TCD Rule and a direction for NZTA to reconsider a 2021 determination by the Director of Land Transport that the Crossing did not contravene the TCD Rule.
The case
Applicability of the 2018 TCD Rule and 2020 Amendment
The Court first determined that the Crossing’s lawfulness was to be decided under the TCD Rule at the time of its installation (“2018 Rule”). Neither the 2020 Amendment nor the Land Transport Act provided for retroactive application, so the 2020 Amendment could only apply prospectively to road marking installations.
The Court noted the general principle of administrative law that a statutory power must be exercised for the purpose of that power, but alternative purposes may be pursued provided they do not compromise the power’s primary purpose. The Court determined that expressing LGBT pride was a permitted alternative purpose of the Crossing, provided that it also had a purpose directly connected to the use of the road and did not otherwise compromise the TCD Rule.
Did the Rainbow Crossing comply with the 2018 TCD Rule?
Clause 5.5 of the 2018 Rule prohibited road markings that were advertisements or unconnected with the use of the road. While most pedestrians crossed the street outside the rainbow markings, during busy periods pedestrians fanned out across the Crossing. The Court determined that the Crossing guided pedestrians to where they could cross at the intersection, which was a sufficient connection with the use of the road.
The Court determined that the Crossing did not mislead pedestrians, so the alternative purpose of expressing LGBT pride did not compromise the purpose of road safety. The Crossing had a starkly different design to a pedestrian crossing’s spaced-apart white lines. The Crossing’s traffic signals also distinguished it from a pedestrian crossing, and it did not have the other features required of pedestrian crossings, such as the black and white poles with orange discs or globes.
The applicants did not present any evidence that the Crossing was compromising pedestrian safety. Surveys of the crossing showed frequent jay-walking, but this was not due to pedestrians believing they had right of way. Pedestrians respected the traffic signals and only crossed on a ‘red’ signal when there were no approaching vehicles.
As the Crossing carried a purpose connected to the use of the road and did not otherwise compromise safety or any other purposes of the TCD Rule, the Court determined that the Crossing complied with the 2018 Rule and was lawfully installed.
Did the Rainbow Crossing comply with the 2020 Amendment?
The Court formed the view that the Council’s ongoing maintenance of the Crossing did not constitute “installing” it for the purposes of the 2020 Amendment, so regardless of whether the Rainbow Crossing complied with the 2020 Amendment the Council was permitted to maintain it. In case that view was wrong, the Court still gave its opinion that the Crossing complied with the 2020 Amendment.
Clause 5.6 of the 2020 Amendment provided for roadway art in “lower risk” environments that were not similar to other road markings and did not mislead pedestrians. The rule included an example where “a series of long rectangles are painted on the road, parallel to the kerb and perpendicular to oncoming vehicle traffic” that resembled or were similar to a pedestrian crossing as road markings incompliant with rule 5.6.
The applicants argued that the Crossing too closely resembled a pedestrian crossing, but the Court determined that the design was sufficiently different, distinguishing the Crossing from the example given in the 2020 Amendment. The Court also determined that the crossing was a “lower risk environment” owing to speed bumps on either side of the crossing and the low motorist speeds.
As the Crossing was distinct from other road markings and was located within a “lower risk” environment, even if it had to comply with the 2020 Amendment the Crossing was lawful.
Result
The Court dismissed the application for judicial review. The installation of the Crossing was lawful. NZTA and local authorities now have judicial guidance of the circumstances where a rainbow crossing may be lawfully installed.
This case is a reminder of the principle that laws are prospective by default and will not have a retroactive effect unless specified and empowered by Parliament. Changing a rule without retrospective effect will not change the lawfulness of an action already undertaken.
For further information on this or similar cases please contact Director Brigitte Morten.
