Brigitte is admitted as a barrister and solicitor of the High Court.
She has over a decade of experience working in politics across Australia and New Zealand. She has a Bachelor of Law from Victoria University, a Masters of Law from the Australian National University, and a Graduate Certificate in Counter-Terrorism from Interdisciplinary Center (Israel).
Brigitte spent three years providing political and media advice to the Embassy of Israel in Australia, whilst dealing with a number of high profile events. She worked as a Senior Advisor in state politics and worked on a number of Australian state and federal election campaigns. Brigitte was a Chief of Staff to an Australian Senator, before returning home to be the Senior Ministerial Advisor to the Minister of Education in the last National Government.
She has worked extensively with clients in the private sector to help them establish and maintain relationships with government, lobby on important issues, and drive campaigns to raise public interest. Brigitte particularly enjoys working with grassroots and member based organisations.
Brigitte has extensive knowledge of law making processes, how to best utilise the Official Information Act, and how to coordinate public interest campaigns across multiple channels. She is particularly interested and experienced in firearms law, electoral law and large scale reforms.
She is a regular commentator for RNZ and Newshub, and writes a weekly column for NBR.
All Aboard Aotearoa Inc (AAA) unsuccessfully sought to judicially review decisions made by the Regional Transport Committee (RTC), Auckland Council’s Planning Committee and the Auckland Transport (AT) board in relation to the Auckland Regional Land Transport Plan (RLTP) 2021.
AAA are an incorporated society whose members share concerns about the environmental and social impacts of Auckland’s transport sector.
The RLTP sets the future direction of transport in Auckland. AAA sought a judicial review of the decisions on the 2021 RLTP as a result of environmental concerns.
The group sought to judicially review the following:
1. The decision of the RTC to recommend the final RLTP to the Planning Committee and the AT board.
2. The decision of the Planning Committee to endorse the RLTP for submission to the AT board.
3. The decision of the AT board to approve the RLTP.
The RLTP, in AAA’s view, did not go far enough to reduce greenhouse gas (GHG) emissions and mitigate environmental concerns. Therefore, they argued that the decision of the RTC to recommend the plan was unlawful as they had relied on incorrect advice that the RLTP was consistent with the Land Transport Management Act 2003 and was consistent with the Government Policy Statement on Land Transport 2021.
AAA argued similar grounds on the decision by the Planning Committee to approve the RLTP and also argued that the Council had failed to consider the requirements of the Local Government Act 2002, and to identify that the plan was inconsistent with Auckland Council’s Climate Emergency Declaration.
They challenged the decision of Auckland Transport on the grounds that they were not properly informed and had acted contrary to its statutory purpose (as stated in the Land Transport Management Act).
In dealing with the three challenges, the court identified a number of issues.
Was the RLTP consistent with the purpose of the Land Transport Management Act 2003?
The purpose of the Land Transport Act is “to contribute to an effective, efficient and safe land transport system in the public interest.” There is no specific requirement for environmental wellbeing to be addressed when making decisions or undertaking duties under the Act.
Was the RLTP consistent with the Government Policy Statement on Land Transport 2021 (GPS)?
The GPS does make reference to environmental wellbeing.
It identified four strategic priorities; climate change was one these. AAA submitted that it was the overriding and overwhelming consideration.
However the Judge said this does not impose a statutory requirement to consider whether the RLTP addressed environmental concerns. The RTC could be satisfied that the RLTP contributed to the purposes of the Act.
The Judge held that this analysis is constrained to identifying the legal limits of the power. The RLTP is required to be consistent with GPS 2021 as a whole, meaning there are considerations beyond climate change. Additionally, the Judge said that none of the strategic priorities are overriding. Climate change was therefore not a pre-eminent or dominant consideration of GPS 2021, and the requirement is for consistency as a whole.
Was there a failing in the process or a use of inaccurate information which vitiated the decisions?
AAA’s main critiques were that AT failed to apply the ‘proper climate lens’ and did not assess any of the proposals against the strategic priorities of the GPS. Inadequate information at the time of a decision can amount to a material error of fact.
AAA also argued that AT was committed to delivering its pre-existing investment programme, and started from the flawed premise that 93% of the investment was required for mandatory projects/programmes.
The Judge disagreed, noting the programme supported better transport options and emissions reductions. The Judge also recognised that existing long-term capital projects established for the other purposes would require continued investment.
AAA criticised the use of the Macro Strategic Model (MSM), which they asserted led to inaccuracies in the forecasted emissions reductions relied on by decision-makers.
AAA challenged advice that roading projects and lane reallocation would reduce GHG emissions, and that no further funding was available for reallocation of road space.
The Judge held that while the parties reached different conclusions based on the evidence and modelling, this did not amount to a reviewable error.
AAA argued that the RTC did not consider the 6% increase in GHG emissions the RLTP would cause, which was inconsistent with the climate change strategic priority. AAA criticised the RLTP’s apparent reliance on government action, though the Judge held that ignoring such government intervention would be artificial.
AAA raised issue with the RTC relying on advice that the RLTP is consistent with GPS 2021 because the RLTP was derived from the Auckland Transport Alignment Project(ATAP). AAA claimed this is irrelevant. However, the Judge noted that Ministerial support for ATAP was indicative that the RLTP is consistent with the GPS.
AAA argued that the RTC were presented with a binary choice where they should have been presented with numerous other options. The Judge held it was open for the RTC to determine the RLTP was consistent with the GPS, and it was incorrect to categorise the choice as “binary”.
Similarly, AAA claimed that the Planning Committee failed to identify all reasonably practicable options available, and assess the options in terms of advantages and disadvantages. Instead, AAA claimed they made the same binary decision as the RTC.
The Judge rejected this as the Planning Committee had no powers to require changes and it was plainly open to them to endorse the RLTP.
Did the Planning Committee breach the Local Government Act 2002 (LGA) by failing to identify its decision as significantly inconsistent with plans or policies of council?
Section 80 of the Act requires that where a decision of a local authority is either significantly inconsistent with, or its consequences are expected to be inconsistent with any policy adopted, or any plan required by an enactment, then the authority must identify the inconsistency.
AAA submitted that the decision of the Planning Committee was significantly inconsistent with the Auckland Climate Change Emergency Declaration and Auckland’s Climate Plan (Te Tāruke-ā-Tāwhiri).
The climate plan was adopted by Auckland’s Council through unanimous resolution in July of 2020. However the Judge held that s 80 does not apply, since it was voluntarily prepared and not required under any enactment.
AAA’s challenges to the decisions of the RTC, the Planning Committee and the AT Board were all dismissed.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
Director Brigitte Morten joined Nine Noon this week to discuss the week in politics. Alongside host Kathryn Ryan and Lamia Imam, they discussed the role of the economy and impact on the government's re-election chances, the latest Newshub poll and hate speech.
Franks Ogilvie Director Brigitte Morten joined Nine to Noon today to discuss the week in politics. Alongside host Susie Ferguson and PR consultant Lamia Imam, they talked about the National Party conference, their announcement on Welfare that Works, the bungled cost of living payments, National's tax policy and the new umbrella freedom political party.
To listen, click here
