Case Brief: Wellington International Airport Ltd v Waka Kotahi [2022] NZHC 954

July 28, 2022

Summary

Wellington International Airport unsuccessfully applied for an interim injunction pausing the New Zealand Transport Authority’s (Waka Kotahi) construction of a signal-controlled pedestrian crossing on Cobham Drive, until their judicial review application could be heard in the High Court.

 

Background

Let’s Get Wellington Moving (LGWM) is a partnership between Waka Kotahi, Wellington City Council and the Greater Wellington Regional Council. LGWM was established with the responsibility of finding solutions to Wellington’s land transport issues.

 

Cobham Drive is the primary route from the CBD through to Wellington Airport and the eastern suburbs. LGWM proposed lowering the speed limit and constructing a pedestrian crossing to improve safety. Construction was delayed pending this decision.

 

The Case

Wellington Airport filed for judicial review of the decision by Waka Kotahi to proceed with constructing a signalised, level crossing on Cobham Drive despite consultation favouring alternative options.

 

Wellington Airport also filed for an interim injunction to pause construction of the crossing until the substantive hearing.

 

The purpose of the injunction was to prevent the traffic issues and costs associated with construction occurring before the substantive hearing.

 

A successful application for an interim injunction requires demonstration of a necessity to preserve a position. The judge may also decline the application due to other discretionary considerations.

 

Wellington Airport based their case on four main grounds.

 

Consultation (failure of Waka Kotahi to properly consult)

The Court held that consultation requirements differ depending on circumstances.

 

Wellington Airport claimed Waka Kotahi had three main obligations. These were to:

  1. Provide submitter with sufficient information and opportunities to enable full, intelligent and useful responses;
  2. Consider responses; and
  3. Make a decision with an open mind, being prepared to change their position.

LGWM’s consultation documents and business case supported construction of a level crossing in the short-term to provide safety improvements sooner.

 

Wellington Airport claimed Waka Kotahi failed to provide sufficient information due to errors in the modelling used to produce the business case that consultation was based on. However, the Court found the modelling process is a decision for Waka Kotahi and from a preliminary view, there appeared to be sufficient information provided. A definitive decision on this ground was left for the full hearing.

 

Wellington Airport also submitted that there were issues in the benefit-cost ratio (BCR) calculation. Any issues were considered unlikely to be significant nor affect the outcome of a decision. The Judge left this for the trial Judge to consider in more detail.

 

Relevant considerations

Relevant considerations are those which the decision-maker must consider while making their decision.

 

Wellington Airport submitted LGWM had failed to consider whether the proposal would have prevented the type of fatality seen in 2016 resulting from a pedestrian attempting to cross Cobham Drive. The Court left consideration of relevancy for the full hearing. However, it was noted that safety concerns do arise from the lack of a crossing.

 

Another consideration identified was whether the crossing would be inconsistent with a Mass Rapid Transport solution and longer-term development. The Court held there is nothing preventing short-term activities being implemented.

Wellington Airport also argued LGWM failed to consider the Traffic Control Devices Rule which governs the installation and operation of traffic controls. Complete consideration was left for the full hearing though, the Court held failure to consider the rule would not solely be sufficient to highlight a fatal error indecision-making.

 

Unreasonableness

The Judge held the decision failed to reach the high threshold of being “so unreasonable no rational decision maker could have come to it”. Resultantly, there was no further analysis of this issue.

 

Unlawful fettering of discretion

Wellington Airport argued LGWM failed to exercise its discretion by only considering a signalised level crossing. The Court held that evidence did not support this allegation.  

 

Interim relief and preserving the position of the Airport

The Court held the statutory threshold of reasonable necessity to protect Wellington Airport’s position was not reached. Proposed delays were not deemed significant and construction disruptions would occur regardless of the chosen solution.

 

The Court noted that discretionary considerations favoured dismissal. Notably, the crossing would be of public interest as it would increase safety for those crossing Cobham Drive.

 

Result

The Judge made a preliminary assessment that the case is not overwhelmingly strong and therefore was not satisfied the applicant had a position to preserve. The Judge therefore did not grant an interim injunction.

 

Wellington Airport have since dropped their judicial review application.

For further information on this case or similar issues, please contact Director Brigitte Morten.

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