Movement unsuccessfully sought judicial review of Waka Kotahi’s decision to adopt the National Land Transport Programme 2021 (“NLTP 2021”). The basis of Movement’s challenge was that land transport investments set out in the plan did not sufficiently contribute to a transition to a zero carbon land transport system.
Under the Land Transport Management Act 2003 (“LTMA”), Waka Kotahi was obliged to produce a NLTP setting out planned land transport investment activities for the upcoming three years. The LTMA required NLTPs to contribute to the purpose of the Act and to ‘give effect’ to the prevailing Government Policy Statement on Land Transport (“GPS”).
At the time, the purpose of the Act was ‘to contribute to an effective, efficient and safe land transport system in the public interest’. The GPS in effect at the time NLTP 2021 was adopted (“GPS 2021”) set out four strategic priorities, one of which was climate change mitigation. The strategic priority was facilitated by performance targets on transport emission and pollution reductions, as well as increased transport system resilience, to be achieved by 2031.
Waka Kotahi applied qualitative metrics to measure the GPS-alignment and emissions impact of the investment activities proposed in the NLTP. On this basis, they concluded that the NLTP 2021 accorded with the statutory purpose and ‘gave effect’ to the GPS 2021 strategic objectives, and the NLTP 2021 was approved.
Movement, a charitable trust advocating for sustainable public transport, brought judicial review proceedings against Waka Kotahi, challenging the decision to adopt the NLTP 2021.
Movement’s three causes of action boiled down to two primary claims:
1. The purpose of the LTMA required Waka Kotahi to pursue climate change mitigation objectives when formulating the NLTP 2021, and they failed to do so.
2. Waka Kotahi had not ‘given effect’ to the climate change strategic priority in GPS 2021 because it had failed to assess whether the planned activities in the NLTP 2021 would reduce carbon emissions.
The court held that ‘public interest’ in the LTMA purpose section did not contemplate climate change mitigation. Recent amendments to the LTMA suggested that the statutory purpose was focused on value for money outcomes. Additionally, the structure of the LTMA suggested that government policy, not statutory objectives, was to be the primary guiding mechanism for decision-makers.
Accordingly, none of the three causes of action could succeed on the ground that the NLTP 2021 failed to contribute to the statutory purpose of climate change mitigation in the public interest.
Movement’s case was that the statutory requirement that the NLTP 2021 ‘give effect to’ the GPS 2021 imposed a legal obligation on Waka Kotahi to plan investment activities so as to reduce emissions. As Waka Kotahi had relied on qualitative rather than quantitative assessments, they could not know whether the NLTP 2021 achieved these emissions, meaning they had not given effect to the GPS 21 and the decision was unlawful.
The court rejected Movement’s argument. The GPS 2021 was a strategic roadmap, not a legislative document. While the statutory language was imperative, prior case law established that where a decision-maker is required to ‘give effect’ to multiple competing priorities, all that is required is that the objectives not be disregarded when making the decision. Beyond this, the decision-maker is entitled to considerable leeway when exercising judgement, particularly in decisions of a technical nature.
Additionally, in regard to the criticisms of Waka Kotahi’s reliance on qualitative measurement, the court emphasised the dangers of ‘false scientificism’ – the concept that quantitative measurement could give a false appearance of objectivity, and detract from the exercise of judgement when balancing multiple competing objectives. The court also noted that reliable quantitative measurement tools for land transport emissions did not yet exist. Accordingly, Waka Kotahi was entitled to utilise qualitative tools in determining whether it had ‘given effect’ to the GPS 2021 climate change strategic priority.
Movement’s judicial review of Waka Kotahi’s decision to adopt the NLTP 2021 was dismissed on all three grounds.
Update: Waka Kotahi was successful in recovering costs from Movement in respect of the action. The court gave greater weight to the primary ‘loser pays’ principle of costs awards than to the principle that costs should lie where they fall in reasonably pursued public interest cases. Importantly, the court noted that climate change cases brought by non-profit advocacy organisations do not automatically justify a reduction in costs. In this case, the public interest was less than the norm.The court noted that the issues had already been substantially canvassed in an earlier case
(All Aboard Aotearoa Inc v Auckland Transport [2022] NZHC 1620)
Additionally, the claimant had caused significant expense and increased court time by framing their case on a detailed analysis of Waka Kotahi’s investment methodology rather than sticking to big picture issues.
For further information on this case or similar issues please contact Brigitte Morten, Director
