Court of Appeal chides Wellington City Council over decision-making process
AI generated image of a judge’s gavel striking a pile of paperwork
In a strongly worded rebuke of Wellington City Council’s decision-making processes, the Court of Appeal has sided with opponents of road and parking changes along Thorndon Quay, even though it has found the decision has improved safety along the route and won’t be ordering the work undertaken so far to be undone.
Elected representatives have drilled into them at every available opportunity that there is an ever present risk of their decisions being judicially reviewed. This is especially the case when they’re trying to do things via Notices of Motion or modifying resolutions prior to a vote, and speaking from experience this often comes off as a tactic to scare off support for such moves from other councillors who might be sitting on the fence on such issues.
What appears to have played out here though is that council officers seem to be the ones at fault for a failure to present alterative options to their recommended course of action to the council’s Planning and Environment Committee. Council officers did consider and assess a range of options, including those submitted by the Thorndon Quay Collective, however having assessed them, they then only presented the single recommendation to the Committee. As a result, the Court of Appeal described the process that took pace as not complying with the Council’s obligations under s 77(1) of the Local Government Act 2002.
Paragraph 63 of the judgement will be interesting reading for any elected representative who has pleaded with council officers to give them genuine options to choose between:
““[63] We disagree with the Judge, however, that if the decision-maker uses a Council employee to assist in the identification of all reasonably practicable options, the employee is only required to present to the decision-maker those that in their view meet the criteria of being “reasonably practicable”. We accept TQC’s submission that such a process comes perilously close to an unlawful sub-delegation, because it may well not result in the decision-maker having sufficient information to satisfy itself that the recommended options are indeed the only reasonably practicable ones.”
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To put it simply, council officers don’t have the power to decide to only put a single recommended option in front of elected representatives. Instead they must ensure decision-makers are provided with not only options, but enough information on each of those options to satisfy themselves that any recommended options are the “only reasonably practicable ones.”
No doubt many councillors around the country will be reading that line and reflecting on the many occasions that papers they’ve been given haven’t met that standard, or have at best paid lip-service to it.
The judgement notes that not only have events moved on, but also that the current state on Thorndon Quay is likely safer than what preceded it, and so it hasn’t ordered Wellington City Council to revert the road back to its previous form.
Regardless, the judgement does serve as a stern warning to councils to ensure they are meeting the requirements of the Local Government Act, something which Wellington City Council itself has coped plenty of flak for lately over the quality of advice it’s been providing to its elected representatives over issues such as the Reading Cinema deal and the airport sale proposal.
It also raises the question of whether there should be a better, more efficient way to handle these situations.
A judicial review is a costly and time-consuming process. This is in itself is meant to serve as a deterrent from people using them as a nuisance, and many councils can no doubt attest to various incorporated societies springing up, launching a judicial review, losing it, and never paying council’s costs as only the society itself is liable and it has no funds.
However, that this ruling comes more than three years after the Planning and Environment Committee made its decision and long after the possibility of any changes to the road and parking changes had passed illustrates that the current process is ineffective. This is especially the case because other than a few bad headlines and paying some of the Thorndon Quay Collective’s costs, Wellington City Council faces no real consequences for their breaching of the Local Government Act. Given how fiercely Wellington City Council fought this, and their own media comments since the judgement where they’re still unwilling to admit any fault, something needs to change to prevent councils acting like a law unto themselves.
