IN THE HIGH COURT OF NEW ZEALAND  
WELLINGTON REGISTRY  
I TE KŌTI MATUA O AOTEAROA  
TE WHANGANUI-A-TARA ROHE  
CIV-2022-485-000003  
[2022] NZHC 2356  
BETWEEN  
AND  
THORNDON QUAY COLLECTIVE INC  
Applicant  
WELLINGTON CITY COUNCIL  
Respondent  
Hearing:  
25-26 July 2022  
Appearances:  
R A Kirkness, R Georgiou and J A Tocher for the Applicant  
N M H Whittington for the Respondent  
Judgment:  
14 September 2022  
JUDGMENT OF GENDALL J  
THORNDON QUAY COLLECTIVE INC v WELLINGTON CITY COUNCIL [2022] NZHC 2356 [14  
September 2022]  
Table of contents  
Introduction  
[1]  
Background  
[6]  
[6]  
The parties to this proceeding  
LGWM  
[8]  
The Council’s traffic resolution process  
Grounds of review  
[14]  
[24]  
[32]  
Relief sought  
Principles of judicial review  
Error of law  
[37]  
[40]  
[43]  
[49]  
[53]  
Unreasonableness  
Consultation  
Review of a local authority’s decision-making  
Decision-making process requirements under the LGA  
[58]  
Analysis — Did the Council follow the correct legal process in making its decisions in question? [82]  
Issue one: reasonably practicable alternatives — did the Council fail to identify and assess all  
reasonably practicable alternatives for the achievement of the safety objective of its decision? [84]  
The objective of the Decision  
What the Council did  
[86]  
[90]  
Did the Council seek to identify all reasonably practicable alternatives and assess the options in  
terms of their advantages and disadvantages?  
[94]  
Conclusion  
[106]  
Issue two: consultation — did the Council fail to consult with businesses on two key matters? [108]  
Issue three: discretion under s 79 — did the Council fail properly to exercise its judgment pursuant  
to s 79 of the LGA?  
[124]  
Issue four: mistake of fact — did the Council proceed on material errors of fact?  
Alleged mistakes of fact  
[144]  
[144]  
[148]  
Law on mistake of fact  
First alleged mistake of fact — no adverse social or economic impact of reducing the number of  
parks  
[151]  
Second alleged mistake of fact — comparative safety for cyclists of angled and parallel parks [172]  
Issue five: relief  
Result  
[191]  
[202]  
[204]  
Costs  
Introduction  
[1]  
This case concerns a decision of the respondent, the Wellington City Council  
(the Council) to reconfigure the parking arrangement on Thorndon Quay, a key  
transport route into and out of Wellington City, from mainly angled parks, with some  
parallel parks at various points along the road, to all parallel parks (the Decision).  
[2]  
At the heart of this case, the Council says, is an issue of safety for cyclists  
travelling along Thorndon Quay. In 2020, the Council received an audit report from  
Waka Kotahi NZ Transport Agency (Waka Kotahi) highlighting the issue and urging  
the Council to act to fix the situation. The Council proposed a traffic resolution which  
would convert all angled parks to parallel parks. Following a consultation process, in  
June 2021 the Council voted in favour of the resolution. This is the Decision at issue  
in these proceedings. In September 2021, all parks were then converted to  
parallel parks.  
[3]  
The applicant, the Thorndon Quay Collective Inc, says the Decision was  
flawed. It maintains the Decision and this judicial review concern matters of critical  
importance to the business community on Thorndon Quay. In making the Decision,  
the applicant maintains the Council failed to follow the correct decision-making  
procedures under the Local Government Act 2002 (the LGA). The conversion of the  
parks to parallel parks has had the effect of reducing the number of parks available in  
the key business areas of Thorndon Quay by between 44 and 47 per cent. That  
reduction in parks, the applicant contends, is having a detrimental impact on the  
businesses of its members. Evidence of that impact is provided to the Court from six  
business owners.  
[4]  
The applicant therefore challenges the Council’s decision in the following  
respects, alleging that the Council:  
(a)  
failed to identify and assess all reasonably practicable alternatives for  
the achievement of the safety objective of its decision, as required under  
s 77 of the LGA;  
 
(b)  
in breach of the LGA, failed to consult with businesses on two key  
matters, namely:  
(i)  
an unstated objective that the Council subsequently purported  
to rely on in making its decision; and  
(ii)  
an internal analysis of alternative options conducted by Council  
officers;  
(c)  
(d)  
failed properly to exercise its judgment pursuant to s 79 of the LGA;  
and  
committed material errors of fact in relation to two key assumptions  
underpinning the Council’s decision, namely:  
(i)  
that the reduction in the number of parks would not have an  
adverse impact on businesses; and  
(ii)  
that parallel parks would be safer for cyclists travelling along  
Thorndon Quay than the existing angled parks.  
[5]  
The applicant seeks a declaration that the Decision was unlawful and invalid,  
an order quashing the Decision, and an order requiring the respondent Council to  
return all carparks along Thorndon Quay to their configuration before the Decision.  
The fifth issue in these proceedings concerns whether, as the Council says, relief  
would be futile because of other changes proposed by a joint local initiative, Let’s Get  
Wellington Moving (LGWM). The applicant says this is wrong as it seeks to pre-empt  
decisions that the Council has yet to make.  
Background  
The parties to this proceeding  
[6]  
The applicant is the Thorndon Quay Collective Inc (TQC), an incorporated  
society formed in June 2021 to represent the interests of the business community on  
Thorndon Quay in response to the LGWM project for Thorndon Quay/Hutt Road.1  
[7]  
The respondent, the Council, is a territorial authority constituted under cl 100  
of the Local Government (Wellington Region) Reorganisation Order 1989 and listed  
in pt 2 of sch 2 of the LGA.  
LGWM  
[8]  
Though not itself a party to this proceeding, the actions of LGWM are highly  
relevant background to the Council’s Decision giving rise to these proceedings.  
[9]  
LGWM is a joint initiative between three agencies, namely the Council, the  
Greater Wellington Regional Council (the GWRC) and Waka Kotahi. The objective  
of LGWM as set out in its current relationship and funding agreement is to develop a  
transport system for Wellington that:  
(a)  
(b)  
(c)  
(d)  
(e)  
enhances the liveability of the central city;  
provides more efficient and reliable access for all users;  
reduces reliance on private vehicle travel;  
improves safety for all users; and  
is adaptable to disruptions and future uncertainty.  
[10] In May 2019, the Government approved an indicative package of transport  
reforms by LGWM. LGWM then commenced consultation on a Thorndon Quay/Hutt  
Road project in May and June 2020.  
1
Affidavit of Paul Robinson, 4 May 2022, at [3].  
     
[11] LGWM presented the option of converting the angled parks in Thorndon Quay  
to parallel parks in an engagement report released in July 2020 (the Engagement  
Report).2 LGWM described this as “one of a range of possible options for transport  
reform that were under consideration as part of the LGWM programme”.  
[12] On 17 September 2020, LGWM released a parking impact assessment report  
(the Parking Impact Assessment), which described itself as “an assessment of the  
potential impacts of changes to parking management along Thorndon Quay and Hutt  
Road”.3  
[13] On 4 November 2020, LGM released a report which narrowed down a long list  
of options for the Thorndon Quay/Hutt Road project to a short list of options (intended  
for public consultation). It did so by assessing the options against five investment  
objectives using a multi-criteria assessment (the Long List Report).4 None of the  
short-listed options retained angled parking.  
The Councils traffic resolution process  
[14] Around the same time LGWM was considering changes to Thorndon  
Quay/Hutt Road, Waka Kotahi prepared an investment audit report for the Council, in  
which it commented on the safety for cyclists of the angled parks on Thorndon Quay.5  
[15] A public petition was also launched on 22 December 2020 asking the Council  
to fix what was said to be the unsafe situation for cyclists travelling along Thorndon  
Quay with little room to ride.  
[16] The Council decided it could not wait for the work being done by LGWM on  
Thorndon Quay/Hutt Road to occur and accordingly it concluded that it needed to do  
something about the problem of cyclist safety for itself. It proposed a traffic resolution  
2
Let’s Get Wellington Moving Thorndon Quay and Hutt Road: Engagement Report (July 2020).  
Let’s Get Wellington Moving Parking Impact Assessment: Thorndon Quay Hutt Road (17  
3
September 2020) [Parking Impact Assessment Report] at 3.  
Let’s Get Wellington Moving Thorndon Quay Hutt Road: Long List to Short List Options Report  
4
(4 November 2020).  
5
Waka Kotahi NZ Transport Agency Investment Audit Report: Technical and Procedural Audits of  
Wellington City Council (30 July 2020) [2020 Audit Report] at 19.  
   
which would make several road layout changes it thought would improve the issue,  
including changing the angled parking to parallel parking (the traffic resolution).  
[17] On 14 April 2021, the Council’s Regulatory Process Committee passed a  
resolution noting that Council officers proposed to time the traffic resolution process  
to coincide with consultation LGWM was running in relation to changes to  
Thorndon Quay. This was to begin 10 May 2021.6 However, the resolution noted that,  
should the LGWM consultation be delayed, their own traffic resolution process would  
continue regardless.  
[18] On 11 May 2021, the Council released a consultation document on the traffic  
resolution (the Consultation Paper). This proposed to convert all angled parks on  
Thorndon Quay to parallel parks.7 Thus the Council’s consultation and the  
consultation by LGWM on its Thorndon Quay/Hutt Road project took place, as one  
Council witness describes it, as “two processes happening in parallel”.8 These  
consultations were, however, distinct and relied on separate consultation documents.  
In particular, the Council at the time also released another document relating to an  
analysis of crashes and parking (the Parking Analysis Paper).9  
[19] Consultation on the traffic resolution was open for 20 working days, that is  
until 8 June 2021. The applicant requested a two-week extension. An extension was  
granted but only for two days. During the consultation period, “representatives” from  
the applicant met twice with representatives from LGWM. (I leave on one side here  
the fact that, by its own account, the applicant only came into existence the following  
month, June 2021). Members of the applicant, it appears, said that these meetings  
were variously difficult, confrontational and unhelpful. The Council responds that,  
apart from opposition from businesses who now form part of the TQC, the public  
response was supportive of the proposed change.  
6
Minutes of Regulatory Process Committee, 14 April 2021.  
Wellington City Council TR53-21 Thorndon Quay Pipitea - Convert angled parking to parallel  
7
parking (11 May 2021).  
Affidavit of Sebastian Bishop, 13 June 2022, at [2.7].  
Wellington City Council Thorndon Quay Crashes & Parking Analysis (11 May 2021) [Parking  
8
9
Analysis Paper].  
 
[20] The Council, it appears, has delegated responsibility for making decisions on  
“significant traffic resolutions” to the Council’s Planning and Environment Committee  
(the Committee). The Committee comprises all elected members of the Council. The  
Committee received a Council officer’s report on the traffic resolution summarising  
the submissions that had been received, including the submission made by the  
applicant. At a meeting held on 22 June 2021, the Committee heard oral submissions  
on the issue from the applicant and from CyclingAction Network, each for 30 minutes.  
Then, on 24 June 2021, the Committee met to consider the traffic resolution. At that  
meeting, the Committee passed the traffic resolution by a majority vote of 10:5 (the  
Decision). As I note above at [2], this is the Decision now at issue in these  
proceedings.  
[21] The Council then implemented the Decision and converted all the parks on  
Thorndon Quay to parallel parks over a period of two weeks in September 2021.  
[22] Thereafter, the applicant sought first to engage with the Council at a political  
level. It collected 1,456 signatures for a petition asking the Council to conduct an  
independent review of the social and economic impact of the Decision. On  
15 December 2021 the Council rejected the applicant’s petition and the applicant filed  
these proceedings for judicial review on 23 December 2021.  
[23] The Council advises the Court that since this proceeding commenced, LGWM  
has now determined the concept road design for Thorndon Quay/Hutt Road, and has  
confirmed funding for it. Detailed design of the concept I am told is now underway.  
The new road layout, however, includes a bi-directional cycleway, a dedicated bus  
lane towards the city, footpath and streetscape improvements, and on-street parallel  
parking. The Council says the concept does not include any angled parking. The  
construction works, according to the Council, are expected to commence as early as  
March 2023.  
Grounds of review  
[24] As noted above, the applicant TQC challenges the Council’s decision in four  
respects. It does so under three heads of review.10  
[25] The first ground of review concerns the Council’s failure to identify and assess  
all reasonably practicable options. The TQC says the Decision was legally flawed  
because the Council failed to, or failed adequately to, comply with the requirements  
of the LGA. Under s 77 of the LGA, the Council has a duty when making decisions  
to seek to identify all reasonably practicable options for the achievement of the  
objective of the decision and to assess the options in terms of their advantages and  
disadvantages. The applicant says that neither the Council, nor the Committee, to  
which it delegated responsibility for making the Decision, complied with these  
requirements.  
[26] TQC says the stated objective of the Decision was to improve safety for  
cyclists travelling along Thorndon Quay by reducing conflicts between cyclists and  
motorists using the angled car parks. However, TQC maintains that, when making the  
Decision, the Council only considered angled parking conversion as a means for  
achieving that stated objective and did not seek to identify alternative options for  
achieving this. The TQC contends the Council did not assess the reasonableness of  
any alternative options, including their advantages and disadvantages.  
[27] The TQC says the Council did not assess angled parking conversion in terms  
of its advantages and disadvantages, including:  
(a)  
(b)  
the evidence that it would improve road safety for cyclists and other  
road users, and reduce social costs related to injuries;  
the social and economic impacts of the change, including the  
disproportionate burden on members of the applicant; and  
10  
The reason for the difference in numbering appears to be that the first ground of review  
encompasses the applicant’s challenge to the Council’s exercise of discretion under s 79 of the  
LGA, which is also described by the parties as a discrete issue and which I therefore assess as such  
as a discrete third main issue in this judgment.  
 
(c)  
new safety hazards it would introduce for cyclists and other road users,  
including hazards resulting from the parallel parks and from the new  
road configuration.  
[28] The TQC also says the Council failed to comply with the requirements of the  
LGA by: failing to make a judgment under s 79 of the LGA in relation to the Decision;  
failing to have sufficient information lawfully to make such a judgment; or,  
alternatively, making a judgment under s 79 of the LGA that was not in proportion to  
the significance of the Decision and was therefore unlawful.  
[29] The second ground of review alleges that the Council failed to consider views  
and preferences of persons affected by the Decision in accordance with the LGA. The  
TQC contends the Council has a duty under the LGAto give consideration to the views  
and preferences of persons likely to be affected by, or who have an interest in, its  
decisions. The TQC maintains the Decision was invalid and unlawful because the  
Council failed to, or failed adequately to, comply with its duty, including by failing to:  
(a)  
make publicly available an analysis of the reasonably practicable  
options that Council officers had identified;  
(b)  
(c)  
provide relevant data in a timely manner after it had been requested;  
identify the nature of the perceived safety risk to cyclists during the  
consultation period;  
(d)  
(e)  
(f)  
allow a reasonable time for preparation of an empirical submission;  
maintain an open mind during consultation; and  
have regard to the significant likely impact of angled parking  
conversion from the perspective of TQC members.  
[30] The third ground of review relates to the Council’s alleged failure to accurately  
assess the social and economic impacts of the Decision. The applicant says the  
Decision was legally flawed. This was because it was based on material errors,  
including reliance on incorrect conclusions, improper comparisons and incorrect  
analysis.  
[31] I note that pre-determination by the Council was not pleaded at all. While the  
intentions and actions of Waka Kotahi and LGWM were relevant and important, there  
was no suggestion made by the TQC that the Decision of the Council was  
pre-determined in any way.  
Relief sought  
[32] The TQC seeks the following relief:  
(a)  
(b)  
(c)  
a declaration that the Decision was unlawful and invalid;  
an order quashing the Decision;  
an order requiring the Council to return all carparks along Thorndon  
Quay to their configuration before the Decision;  
(d)  
(e)  
such other relief as the Court thinks just; and  
costs.  
[33] All parties accept that, in the event the Court finds a material error has been  
made, a declaration to that effect (as described in [32](a) above) would be appropriate.  
[34] However, the Council also raises as an affirmative defence that even if the  
Court finds that the Decision was flawed, the Court should exercise its remedial  
discretion against making the other orders sought. Specifically, the Council contends  
the Court in any event should exercise its discretion against quashing the Council’s  
decision, or alternatively, if at all, it should do so only on a prospective basis, given  
the effect quashing the Decision would have on parking revenue. This is on the basis  
too that any such remedy ordered by the Court would be futile because, by the time  
the Court came to consider the application, the Council and LGWM would have  
determined the future layout of Thorndon Quay. The Council submits that at the time  
 
the Council made the Decision, it knew the effect of the Decision would be interim  
until the implementation of the Thorndon Quay/Hutt Road project.  
[35] The Council suggests there are two other factors, in addition to foregone  
parking revenue, in favour of the Court exercising its discretion in this way. First, the  
Council says that given the evidence from two road safety experts that the current  
configuration is safer for cyclists, their safety should not be put at unnecessary risk by  
reverting to the former configuration in the interim. Second, the Council maintains  
that quashing the decision will have other effects, such as requiring further  
consultation and data evaluation and having to refund revenue collected since the  
Decision was implemented. This, it says, would cause significant administrative  
inconvenience and waste.  
[36] In response, TQC maintains these concerns are not sufficient to decline relief  
for an unlawful exercise of public power. It contends the courts do not generally  
decline relief simply because it is perceived to be futile, and further, that if it were  
otherwise, this would undermine the rule of law requiring a decision-maker to respond  
to a finding that it acted unlawfully, even if the outcome is ultimately the same.  
Principles of judicial review  
[37] I turn now to consider the principles by which this judicial review proceeding  
is to be addressed.  
[38] It is well-established that in a judicial review the Court does not review the  
merits of the conclusion reached by a decision-maker. The focus is on the process by  
which the conclusion was reached. As Cooke J said in Patterson v District Court, Hutt  
Valley:11  
… In every judicial review case the Court’s role is to review whether a  
decision is made in accordance with law. In all cases it does so in the same  
dispassionate way …  
[39] In New Zealand Forest Owners Association Inc v Wairoa District Council,  
Grice J noted that the courts have approached judicial review in New Zealand “bearing  
11  
Patterson v District Court, Hutt Valley [2020] NZHC 259 at [16].  
   
in mind that it is a supervisory jurisdiction to ensure that powers are exercised in  
accordance with law.”12 Along similar lines, in Coromandel Watchdog of Hauraki  
(Inc) v Minister of Finance, Simon France J commented that judicial review was  
intended to be a comparatively simple process of “testing that public powers have been  
exercised after a fair process, and in a manner, which is both lawful and reasonable.”13  
The limitations of those powers are then to be ascertained from the statute or other  
regulation which bestows them, which also gives the extent of the decision-making  
freedom provided.14  
Error of law  
[40] The Supreme Court has described an error of law in the following way:15  
[26]  
An ultimate conclusion of a fact-finding body can sometimes be so  
insupportable — so clearly untenable — as to amount to an error of law:  
proper application of the law requires a different answer …  
[41] According to the Supreme Court there, that will be the position only in the rare  
case where there has been a state of affairs in which:16  
(a)  
(b)  
“there is no evidence to support the determination”; or  
“the evidence is inconsistent with and contradictory of the  
determination”; or  
(c)  
“the true and only reasonable conclusion contradicts the  
determination”.  
[42] Case law also puts the test of an error of law as whether the finding was “open”  
to the authority,17 or otherwise in terms of unreasonableness. In Hu v Immigration and  
12  
New Zealand Forest Owners Association Inc v Wairoa District Council [2022] NZHC 761 at [19].  
Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13], citing  
13  
BNZ Investments Ltd v Commissioner of Inland Revenue HC Te Whanganui-a-Tara | Wellington  
CIV-2006-485-697, 7 December 2006 at [15].  
Patterson v District Court, Hutt Valley, above n 11, at [14]–[15].  
Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.  
At [26], citing Edwards v Bairstow [1956] AC 14 at 36.  
14  
15  
16  
17  
Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).  
   
Protection Tribunal, Palmer J stated in relation to an error of law in a judicial review  
context:18  
Where a decision is so insupportable or untenable that proper application of  
the law requires a different answer, it is unlawful because it is unreasonable.  
That may involve the adequacy of the evidential foundation of a decision or  
the chain of logical reasoning in the application of the law to the facts.  
Unremarkably, unreasonableness, also termed irrationality, is to be found in  
the reasoning supporting a public decision.  
Unreasonableness  
[43] In Aorangi School Board of Trustees v Ministry of Education, French J  
reiterated the well-known test for unreasonableness in public law terms as follows:19  
[100] In considering the reasonableness of a decision, the orthodox test is  
that the applicant must show the decision was so unreasonable no rational  
decision maker could have come to it …  
[44] Unreasonableness arises only where a decision maker comes to a decision that  
no reasonable decision maker could have reached, a decision which lies “outside the  
limits of reason”.20 As has been noted elsewhere, it is clearly a high threshold to  
meet.21  
[45] For the ultimate decision of a local authority to be invalidated as  
“unreasonable”, it must be so “perverse”, “absurd” or “outrageous in [its] defiance of  
logic” that Parliament “could not have contemplated such decisions being made by an  
elected council.”22 In Wellington City Council v Woolworths New Zealand Ltd (No 2)  
the High Court had granted relief to the applicants, making a declaration that the  
Council acted unreasonably and unfairly towards them.23 However, it was common  
ground that the Council had: weighed all the relevant considerations; not had regard  
to irrelevant considerations; consulted adequately; followed all the appropriate  
statutory procedures and processes; and made its decisions in good faith and in what  
18  
Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2].  
Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC).  
Criminal Bar Association of NZ Inc v Attorney-General [2013] NZCA 176 at [136].  
The Ink Patch Money Transfer Ltd v Reserve Bank of New Zealand [2022] NZHC 1340 at [38].  
Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552.  
At 539.  
19  
20  
21  
22  
23  
     
it judged to be the best interests of the city and its ratepayers.24 On appeal, accordingly,  
the Court of Appeal allowed the appeal.  
[46] Though dealing with a discrete issue with other prescriptive requirements, the  
decisions of local authorities have come under significant review in the context of  
rating decisions. In Waitakere City Council v Lovelock, the Court of Appeal confirmed  
the approach of the Court in Wellington City Council v Woolworths New Zealand (No  
2)25. In the Waitakere City Council case, which concerned a decision to introduce a  
differential rating for higher valued, inner-city residential properties, the High Court  
had set the decision aside as unreasonable. However, the Court of Appeal was of the  
view the decision made by the Council was not beyond the bounds of reasonableness.26  
The Court found that the rating committee had canvassed the issues thoroughly and it  
was aware of the steepness of the rating curve and the inequities alleged by the high  
value property owners.  
[47] As the Court of Appeal said there, the test for impugning the rating  
determination was a high one on the grounds of unreasonableness,27 and only in an  
extreme case would the court interfere. A court could intervene only if the decision of  
the Council was irrational or such that no reasonable body of persons would have  
arrived at that decision. A review was not an appeal on the merits, the Court of Appeal  
confirmed, and proper respect had to be given to the role and responsibilities of  
democratically elected councils.28  
[48] It should be noted, however, these comments were made in relation to the  
technical area of rating decisions. The Court of Appeal there said a less restrained  
approach may be taken against other types of Council decision.29  
24  
At 552.  
At 397.  
25  
26  
Waitakere City Council v Lovelock [1997] 2 NZLR 385(CA) at 397.  
At 397 and 419.  
At 396–397 and 419.  
At 420.  
27  
28  
29  
Consultation  
[49] In relation to consultation, the Court in Wellington International Airport Ltd v  
Air New Zealand held that consultation did not require agreement, nor did it  
necessarily involve negotiation toward an agreement, although that might occur.30  
However, consultation was more than mere prior notification. If the person having the  
power to make the decision was required to consult, for consultation to be meaningful,  
the other party must have available to it “sufficient information to enable it to be  
adequately informed so as to be able to make intelligent and useful responses”.31  
[50] A decision-maker has a duty to consult properly and with an open mind before  
making any final decision.32 The decision-maker must provide a proper opportunity  
to the person consulted to put any matters forward that they wished to,33 and the  
decision-maker must take due notice of what is said.34 The proposal must not have  
been finally decided upon in advance, and the decision-maker must listen to what  
others have to say, properly considering their responses, and only then saying what  
will be done.35  
[51] In Aorangi School Board of Trustees v Minister of Education, French J pointed  
out a number of aspects of consultation as follows:36  
(a)  
(b)  
consultation is context-specific, and its content and nature is  
determined by the relevant statutory scheme and objectives;  
consultation is not negotiation — the essential requirement is  
open-minded communication. The decision-maker must genuinely  
provide a meaningful opportunity, to those who are given the right to  
be heard, to identify and advocate their arguments in relation to the  
proposal;  
30  
31  
32  
33  
34  
35  
36  
Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).  
At 676.  
At 683.  
At 683.  
At 684.  
At 675.  
Aorangi School Board of Trustees v Ministry of Education, above n 19, at [36].  
 
(c)  
(d)  
the consultees must be sufficiently informed as to the material facts and  
issues so as to be able to make an intelligent and useful response; and  
the extent and nature of the necessary consultation should be  
proportionate to the significance of the proposal.  
[52] The question, as French J put it:37  
… is really whether those whose views were being elicited knew and  
understood what they were being asked about, knew what the issues were and  
had sufficient information to provide an intelligent and useful response.  
Review of a local authoritys decision-making  
[53] The Court of Appeal has emphasised that in a judicial review, the Court does  
not substitute its own decision for that of the decision-maker.38 In C P Group Ltd v  
Auckland Council, the Court said that it first examined the scheme of the legislation  
and the nature and scope of the Council’s powers and statutory processes before  
turning to the decision.39  
[54] Similarly, as Cooke J noted in Patterson v District Court, Hutt Valley, “[m]ost  
judicial review involves the Court assessing whether a decision is made in accordance  
with the express and implied requirements of the empowering instrument, both in  
terms of the substantive decision and the procedures followed to reach it.”40  
[55] In both Wellington City Council v Woolworths New Zealand Ltd (No 2) and  
Waitakere City Council v Lovelock,41 the Court of Appeal proceeded in its analysis of  
the decisions of each council in this way. First, it set out the scheme of the legislation  
to determine the nature and scope of the council’s powers and the statutory processes  
governing their exercise. Secondly, it turned to review the relevant facts, including  
the processes followed by the council and then the decisions in question, to determine  
37  
At [42].  
38  
C P Group Ltd v Auckland Council [2021] NZCA 587 at [83].  
At [84], citing Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).  
Patterson v District Court, Hutt Valley, above n 11, at [14].  
Wellington City Council v Woolworths New Zealand Ltd (No 2), above n 22; and Waitakere City  
39  
40  
41  
Council v Lovelock, above n 39, at 390.  
   
whether the respective council had discharged its legal responsibilities. This is the  
approach I now propose to adopt.  
[56] In the present case, the empowering instrument, which confers powers on the  
Council, which contains limitations on those powers, and which describes the nature  
and scope of the Council’s powers and the statutory processes to be followed, is the  
LGA.  
[57] It is appropriate that I now detail the decision-making process requirements the  
Council here was obligated to follow under the LGA.  
Decision-making process requirements under the LGA  
[58] The LGA provides the framework for local government decision-making.42  
Under the LGA, there are a number of substantive principles and mandatory  
procedures a local authority must follow in performing its decision-making functions.  
These obligations are in place to reflect the purpose of local government,43 which is  
to enable democratic local decision-making and action by, and on behalf of,  
communities, and to promote the social, economic, environmental, and cultural well-  
being of communities in the present and for the future.44  
[59] Section 14 of the LGA outlines the principles a local authority must act in  
accordance with in performing its functions, including its decision-making. A local  
authority should conduct its business in an open, transparent, and democratically  
accountable manner, and give effect to its identified priorities and desired outcomes in  
an efficient and effective manner.45 It should make itself aware of, and should have  
regard to, the views of all of its communities.46 When making a decision, a local  
authority should take account of the diversity of the community, and the community’s  
42  
Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC  
3228, [2021] NZLR 280 [55].  
See Kenneth Palmer Local Government Law in Aotearoa New Zealand (2nd ed, Thomson Reuters,  
43  
Wellington, 2022) at [5.10.1].  
Local Government Act 2002, s 10.  
Section 14(1)(a).  
Section 14(1)(b).  
44  
45  
46  
     
interests, the interests of future as well as current communities, and the likely impact  
of any decision on each aspect of wellbeing, as I noted at [58] above.47  
[60] The constitution of committees and subcommittees, and the delegation of  
functions to those committees and officers to facilitate council business, is a long-  
standing convention and practice of local government.48 The LGA allows a local  
authority to delegate to a committee any of its responsibilities, duties or powers apart  
from certain powers listed in that section. In this case, the Council delegated  
responsibility for making the Decision to the Committee. There is no issue with this  
delegation.  
[61] Part 6 of the LGA sets out the obligations of local authorities in relation to the  
making of decisions. Section 76 is the key provision relating to every decision made  
by a local authority. Section 76(1) provides that every decision made by a local  
authority under the LGA must be made in accordance with the provisions of ss 77  
(requirements in relation to decisions), 78 (community views), 80 (identification of  
inconsistent decisions), 81 (contributions by Māori) and 82 (consultation) as  
applicable. Under s 76(2), however, the obligations in ss 77 and 78 are subject to the  
judgments of the local authority under s 79 (compliance discretion).  
[62] Section 76(3) provides that a local authority must ensure that its decision-  
making processes “promote compliance” with subs (1), and in the case of a  
“significant” decision, that subs (1) has been “appropriately observed”. Subsection  
(3) thus creates in respect of a local authority’s decision-making under subs (1) what  
the Court of Appeal in Minotaur described as “two standards of performance”.49 As  
the Court of Appeal said there, the first, and higher, standard is to ensure that in respect  
of “significant decisions”, the provisions contained in subs (1) have been  
“appropriately observed”. The second, lower, standard applies in respect of a decision  
which is not “significant”, in which case decision-making is only required to “promote  
compliance” with those provisions.  
47  
Section 14(1)(c).  
Palmer, above n 43, at [5.8].  
Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at  
48  
49  
[33].  
 
[63] In terms of the LGA, “significant”, in relation to any “issue, proposal, decision,  
or other matter” means it “has a high degree of significance”.50 It is a key aspect of  
the present case that the Decision was one of “medium significance”, that is, not a  
“significant” decision. This assessment is not now and has never been challenged.  
This means the Council was required to ensure that its decision-making processes  
“promote[d] compliance with” the requirements for decision-making under s 76(1),  
subject to its judgments made under s 79. The Council did not necessarily need to  
ensure, however, that all provisions had been “appropriately observed”.  
[64] Section 77 lists certain requirements in relation to decisions (which, however,  
is subject to s 79).51 Under subs (1), a local authority must, in the course of the  
decision-making process, relevantly here:  
(a)  
(b)  
seek to identify all reasonably practicable options for the achievement  
of the objective of a decision; and  
assess the options in terms of their advantages and disadvantages.  
[65] Subject to the discretion relating to the level and depth of compliance, under  
s 77(1) a local authority must therefore identify all reasonably practicable options for  
the achievement of the objective of the decision, and assess those options.52  
[66] Section 78 provides, in relation to community views, that a local authority  
must, in the course of its decision-making process, give consideration to the views and  
preferences of persons likely to be affected by, or who have an interest in, the matter.  
However, a local authority is not required to undertake any consultation process or  
procedure under this section alone.53 And again, this is subject to s 79.54  
50  
Local Government Act, s 5(1) definition of “significant”.  
Section 77(2).  
See Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council [2009]  
51  
52  
2 NZLR 123 (HC); Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR  
799 (HC) [Whakatane (HC)]; Island Bay ResidentsAssociation v Wellington City Council [2019]  
NZHC 1240, [2020] NZRMA 157; and Friends of Onekawa Aquatic Centre Society Inc v Napier  
City Council [2020] NZHC 850.  
Section 78(3).  
Section 78(4).  
53  
54  
 
[67] Section 79 provides a qualified discretion to make judgments about  
compliance based on proportionality with the significance of the decision to be made.  
Under s 79(1), it is the responsibility of a local authority, in its discretion, to make  
judgments about:  
(a)  
how to achieve compliance with ss 77 and 78 that is largely in  
proportion to the significance of the matters affected by the decision;  
and  
(b)  
in particular:  
(i)  
the extent to which different options are to be identified and  
assessed;  
(ii)  
the degree to which benefits and costs are to be quantified;  
(iii) the extent and detail of the information to be considered; and  
(iv)  
the extent and nature of any written record to be kept of the  
manner in which the local authority has complied with ss 77 and  
78.  
[68] In making these judgments, the local authority must have regard to the  
significance of all relevant matters, as well as to the s 14 principles set out above, the  
extent of the local authority’s resources, and the extent to which the nature or  
circumstances of a decision allow the local authority scope and opportunity to consider  
a range of options or the views and preferences of other persons.55  
[69] In Whakatane District Council v Bay of Plenty Regional Council, the Court of  
Appeal observed that a court will not interfere with a discretionary judgment under  
s 79 unless it is irrational or made on a wrong legal principle.56 In Minotaur, the Court  
55  
Section 79(2).  
56  
Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR  
826 [Whakatane (CA)] at [76].  
 
of Appeal stated the sections give local authorities “a deliberately broad discretion as  
to whether to consult, and if so, how”.57  
[70] The judgment of this Court in Friends of Turitea Reserve Society Inc v  
Palmerston North City Council related to the decision of the Palmerston North City  
Council to allow the establishment of a wind farm on local reserve land it owned. In  
that case, Baragwanath J in addressing ss 78 and 79 stated:58  
[122] Subject to the principle of proportionality, these principles are to be  
observed by a local authority in such a manner as it considers to be  
appropriate in a particular instance. It is bound to have regard to the  
requirements of s 78 and to the extent to which the current views and  
preferences of affected or interested persons are known and the nature and  
significance of the decision or matter, including its likely impact from the  
respective persons who will or may be affected by or have an interest in the  
decision or matter …  
[71] A council typically has a discretion as to the process and level of consultation  
undertaken.59 Where a local authority does undertake consultation in relation to any  
decision, s 82(1) provides that it must do so in accordance with the principles of  
consultation set out in s 82. Those principles include that:  
(a)  
persons who may be affected by, or have an interest in, a decision  
should be:  
(i)  
provided by the local authority with reasonable access to  
relevant information in a manner and format that is appropriate  
to the preferences and needs of those persons;60 and  
(ii)  
encouraged by the local authority to present their views to the  
local authority;61  
57  
58  
Minotaur, above n 49, at [42].  
Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC)  
(emphasis added).  
Local Government Act, s 78(3); Friends of Onekawa Aquatic Centre Society Inc v Napier City  
Council [2020] NZHC 850; Whakatane (CA), above n 56; Pascoe Properties Ltd v Nelson City  
Council [2012] NZRMA 232 (HC) at [12]; Minotaur, above n 49; and Island Bay, above n 52.  
Section 82(1)(a).  
59  
60  
61  
Section 82(1)(b).  
   
(b)  
where persons are invited or encouraged to present their views to the  
local authority, they “should be given clear information by the local  
authority concerning the purpose of the consultation and the scope of  
the decisions to be taken following the consideration of views  
presented”;62  
(c)  
persons who wish to have their views considered “should be provided  
by the local authority with a reasonable opportunity to present those  
views to the local authority in a manner and format that is appropriate  
to the preferences and needs of those persons”;63  
(d)  
(e)  
the views presented to the local authority “should be received by the  
local authority with an open mind and should be given … due  
consideration”;64 and  
persons who present views to the local authority should have “access  
to a clear record or description of relevant decisions made by the local  
authority and explanatory material relating to the decisions”.65  
[72] These principles are to be observed by a local authority “in such manner as the  
local authority considers, in its discretion, to be appropriate in any particular  
instance.”66 In exercising its discretion in this way, however, the local authority must  
nevertheless have regard to, amongst other things, the requirements of s 78, the extent  
to which the current views of those affected are known, and the nature and significance  
of the decision, including its likely impact.67  
[73] In Whakatane District Council v Bay of Plenty Regional Council, the Court of  
Appeal found that the decision by the regional council to relocate its principal office  
62  
Section 82(1)(c).  
Section 82(1)(d).  
Section 82(1)(e).  
Section 82(1)(f).  
Section 82(3).  
Section 82(4).  
63  
64  
65  
66  
67  
was unlawful as it had inadequately considered submissions at relevant stages of the  
decision-making process.68  
[74] Island Bay Residents’Association v Wellington City Council involved a dispute  
over a cycleway development.69 The Court found that there was no obligation on the  
Council to require a concept design to undergo a prior peer review or to develop further  
options, that a short timeframe for public comment was adequate, that preferences or  
majority views expressed by the community were not determinative, and there was no  
legitimate expectation established.  
[75] An obligation to consult may be more apparent in relation to council decisions  
with direct financial consequences for residents. In Council of Social Services in  
Christchurch/Otautahi Inc v Christchurch City Council, which considered a  
substantial rent increase to public housing to be a significant decision, this Court held  
the Council’s decision to be unlawful for failure to consider practicable options.70  
[76] The leading decision on the obligations of local authorities in undertaking  
consultation is Minotaur.71 That case concerned whether the Council there had  
adequately considered the views of the community when making a change in parking  
entitlements. The Court of Appeal there took a robust approach in finding sufficient  
compliance with the consultation provisions under the LGA. In doing so, it  
summarised the effect of s 82 in the following way:  
[38]  
The effect of this provision [s 82] is that, when a council does choose  
to consult, certain “principles” apply to the particular forms of consultation  
the council adopts: most relevantly, those affected should have access to  
relevant information in an appropriate format and be encouraged to present  
their views having been given clear information as to both the purpose of the  
consultation and the scope of any likely decision. Further, a council must  
ensure that interested or affected parties have a reasonable opportunity to  
present their views, and that those views are received by council with an open  
mind.  
[39]  
In substance, these principles are really basic performance standards.  
Subsection (3) is the counterweight. This restates (now for the third time) that  
the “how” of compliance with these guidelines is a matter for the local  
68  
Whakatane (CA), above n 56. It should be noted, however, that the obligations under s 78 have  
been reduced since the decision in this case.  
Island Bay, above n 52.  
Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52.  
Minotaur, above n 49.  
69  
70  
71  
authority. That proposition is subject to the following further considerations  
which the local authority must (relevantly) bear in mind:72  
(a) the terms of s 78 including, presumably, the fact that it is  
subject to the reservation to the local authority of the decision  
of how to implement;  
(b) whether the views of those affected are already known to the  
local authority;  
(c) the significance of the issue in question for those affected; and  
(d) the costs and benefits of consultation.  
[77] The Court ofAppeal then reproduced s 79 in full and commented that it “begins  
with the position that it is for the local authority to decide in its discretion how ss 77  
and 78 are to be complied with – the fourth such restatement of that principle in Part  
6.”73  
[78] Finally, the Court stated:  
[42]  
In summary, Part 6 of the LGA carefully and repeatedly rejects the  
idea that there is to be found in its provisions any duty to consult with affected  
or interested parties. Instead, local authorities are given a deliberately broad  
discretion as to whether to consult, and, if so, how. That does not mean,  
however, that there are no limits on a council’s discretion. Like all statutory  
decisions, consultation decisions must be rational and consistent with the  
objects of the LGA and the particular controlling provisions.  
[79] The decision in Minotaur was applied recently by Wylie J in Mt Wellington  
Race Park Club Inc v Auckland Council:74  
[99]  
The principles articulated in Wellington City Council v Minotaur  
Custodians Ltd have been followed in a number of subsequent cases, all of  
which emphasise the discretion afforded to local authorities about how to  
consult, and avoid engaging in intense scrutiny of the decision-making  
processes involved.75  
[80] Wylie J went on to consider there that consultation does not require the local  
authority to accept or agree with the submissions made. In that case Wylie J was  
72  
Local Government Act, s 82(4).  
Minotaur, above n 49, at [41].  
Mt Wellington Race Park Club Inc v Auckland Council [2020] NZHC 1245, [2020] NZRMA 469.  
Evans v Clutha District Council [2020] NZCA 5, [2021] NZRMA 374; Gwynn v Napier City  
73  
74  
75  
Council [2018] NZHC 1943; Friends of Onekawa Aquatic Centre Society Inc v Napier City  
Council, above n 59; and Save Chamberlain Park v Auckland Council [2018] NZHC 1462.  
 
satisfied the Council had met the standards of consultation required. His Honour  
stated:76  
[102] In my view, the Council and AT broadly observed the consultation  
principles set out in s 82. The evidence suggests that the Council and AT were  
aware of and understood the views and preferences of the other users. The  
Council and AT understood the nature and significance of their decision to  
lease the property on commercial terms on the other users. Relevant  
information was made available to the other users. They had every opportunity  
to present their case. There is nothing to suggest that the Council and AT  
listened to those views with anything other than an open mind. In particular,  
the meeting called by Councillor Hulse afforded the opportunity for the  
Council to change its mind and allow the property to be leased to AMCC for  
use by it and others.  
[103] In the round, in my view the actions of the Council and AT met the  
standards expected of a local authority. The fundamental problem for  
MWRPC is not that the views of its members were not heard and considered—  
they plainly were. Instead the other users’ complaint is that the Council and  
AT did not agree with their views. There is force in the Council’s argument  
that these proceedings have been brought in an attempt to obtain what  
persuasion could not achieve.  
[81] The learned author of Local Government Law in Aotearoa New Zealand,  
Mr Kenneth Palmer, notes also in his recent book: “None of the decision-making  
obligations requires or binds the local authority to accept the weight of submissions,  
views or preferences of the community or other persons consulted.”77 Palmer also  
goes on to comment:78  
… Consultation is not the same as negotiation. The consultees should be given  
adequate information to know what is proposed, and be given a sufficient  
opportunity to express views and make useful responses. The receiving body  
should be informed of and assess the matters with an open mind, but is not  
bound to respond to individual submitters or identify individual matters …  
Analysis — Did the Council follow the correct legal process in making its  
decisions in question?  
[82] Having traversed in some depth the LGA decision-making process  
requirements for which the Council was obliged to “promote compliance” in making  
the Decision, I turn now to my analysis.  
76  
Mt Wellington Race Park Club Inc v Auckland Council, above n 74.  
Palmer, above n 43, at [5.10.7], citing Whakatane (HC), above n 52; Island Bay, above n 52; and  
77  
Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council, above n 42.  
Palmer, above n 43, at [5.10.9].  
78  
 
[83] The applicant says there are five issues in this proceeding before the Court.  
The first three relate to the statutory process ground, the fourth to material errors of  
fact, and the final issue concerns the relief which is sought.  
Issue one: reasonably practicable alternatives — did the Council fail to identify  
and assess all reasonably practicable alternatives for the achievement of the  
safety objective of its decision?  
[84] The applicant TQC says the Council failed to identify and assess all reasonably  
practicable alternatives for the achievement of the safety objective of its decision, as  
it was required to do by s 77 of the LGA. TQC says the Council consulted only on its  
preferred option and the Committee made no assessment of alternative options.  
[85] As I have noted, under s 77(1), the Council was required in the course of its  
decision-making process (subject to its discretion under s 79), to (a) to seek to identify  
all reasonably practicable options for the achievement of the objective of a decision;  
and (b) to assess the options in terms of their advantages and disadvantages.  
The objective of the Decision  
[86] The Council clearly identified the objective of the traffic resolution in its  
Consultation Paper. Under the heading “Why we are proposing the change”, the  
Council stated:79  
Thorndon Quay is a major arterial transport thoroughfare for  
Wellington City linking the Wellington Central Business District  
(CBD) to the State Highways and the northern suburbs. It has approx.  
30,000 – 50,000 people moving through it daily.  
With the increase in people cycling along Thorndon Quay, the number  
of injuries incidents relating to cyclists have increased over the last  
five years. A major contributor to incidents on Thorndon Quay relates  
to conflicts between cyclists and motorists using the angled car parks  
particularly in the section between Moore Street and Tinakori Road.  
Changing the parking layout from angled to parallel will improve  
safety for cyclists along this section of Thorndon Quay.  
79  
Emphasis added.  
   
[87] In my view, the emphasised passage clearly illustrates the objective of the  
Decision. Indeed, the applicant appears to accept it was this safety hazard on which  
the Council chose to consult.  
[88] The applicant TQC, however, then points to comments it says reveal a distinct  
objective, namely to resolve the lack of lateral space available to cyclists between  
angled parking spaces and the moving vehicles. However, as I see it, this is clearly  
the same objective. Both concern the safety of cyclists travelling along Thorndon  
Quay.  
[89] I am satisfied the objective of the Decision was to improve the safety of cyclists  
travelling along Thorndon Quay.  
What the Council did  
[90] Having identified that objective, it was then incumbent on the Council under s  
77(1) to identify and assess all reasonably practicable options for achieving that  
objective.  
[91] Mr Brad Singh (Mr Singh) at the operative time was the Council’s  
Transport Manager. He is a senior employee of the Council. It transpires that after  
the Council received the 2020 Waka Kotahi Audit Report highlighting the danger to  
cyclists on Thorndon Quay, he was instrumental in determining that the Council  
should explore how to improve safety.  
[92] According to Mr Singh’s evidence, he and his team considered various options  
over the course of five meetings or workshops. These options included: changing the  
angles of the existing angled parking; using “reverse in” angled parking; installing  
mirrors; changing clearway times; and installing another clearway.  
[93] It appears Mr Singh and his team discarded certain options for various reasons,  
including impracticality, not adequately reducing safety risk, high cost, or potential  
conflict with the LGWM options. Ultimately two reasonably practicable options were  
 
identified.80 The first was to change the configuration from angled parking to parallel  
parking until LGWM made further changes. The second was the status quo until  
LGWM made changes.  
Did the Council seek to identify all reasonably practicable alternatives and assess the  
options in terms of their advantages and disadvantages?  
[94] The applicant TQC submits that it was wrong that various options were  
discarded by Mr Singh and his team as not reasonably practicable rather than by the  
Committee itself. However, I accept the respondent’s submission that there is nothing  
unlawful in options being considered and discarded as not reasonably practicable by  
Council officers. The legislation does not require that the specific decision-maker has  
before them all options. Rather, it requires that the local authority seek to identify all  
reasonably practicable options. I consider there is a certain amount of discretion  
available to the Council in terms of how it chooses to do this. There is nothing  
preventing the Council from “seeking to identify” all reasonably practicable options  
through one of its officers. Indeed, it is strongly arguable that there is a greater chance  
of the Council identifying all reasonably practicable options if this work is done by an  
experienced officer within whose job description such a task falls. In my view, if the  
Council utilises one of its officers to identify all reasonably practicable options, and  
the officer then presents to the specific decision-maker the results of their  
identification of all reasonably practicable options, it will have fulfilled the  
requirement under s 77 to “seek to identify” such.  
[95] The Island Bay case in my judgment supports this view. In that case, four  
reasonably practicable options for the implementation of a cycleway in Island Bay had  
been developed for consultation by Tonkin + Taylor, a consultancy engaged by the  
Council. The Judge in that case saw no issue with these “reasonably practicable”  
options being developed by an external consultancy.81  
[96] While the TQC in the present case endeavours to rely on the decision in  
Council of Social Services in Christchurch/Otautahi Inc to support its argument in this  
regard, in that case the issue was that the Council had failed to explore to any real  
80  
Affidavit of Mr Bradley Singh, 6 June 2022, at [4.5]–[4.6].  
Island Bay, above n 52, at [82]–[86].  
81  
 
degree an option it had already identified as reasonably practicable and then it made  
its decision before receiving information from the Government necessary to evaluate  
that option.82  
[97] I note too that in that case Chisholm J expressly recognised the Council was  
only required to identify “reasonably practicable” options, which “[i]nevitably”  
involves an exercise of judgment by the local authority.83 As his Honour went on to  
say, “the Court cannot be expected to intervene where the judgment reached by the  
local authority about whether an option was reasonably practicable was open to it.”84  
[98] I accept that in the present case the Council did identify the reasonably  
practicable alternatives through the work of Mr Singh and his team.85 I accept that  
while Mr Singh and his team had a clear preference between the two alternatives for  
the first option, both were potential outcomes if the Committee decided not to adopt  
the traffic resolution. It was not necessary to include in the Consultation Paper or the  
Parking Analysis Paper the other options which had been identified and then discarded  
as not practicable. Indeed, listing these unviable options would simply have created  
confusion and problematically have gone against the very idea of proper consultation  
with the public.  
[99] And, as to whether the Council fulfilled the requirement to then “assess” the  
options and their advantages and disadvantages, I am also satisfied this occurred here.  
[100] Perhaps somewhat unusually for a matter such as this, transcripts of Committee  
meetings were made and have been made available to the Court. These demonstrate  
that Mr Singh was questioned extensively at the Committee meeting held on  
21 June 2021, and was specifically asked about the assessment of the options. As the  
evidence confirms, Mr Singh proceeded to give a full account of his reasoning. I am  
satisfied, given the fact that the Committee, having heard Mr Singh’s reasoning, then  
went on to vote in favour of the Decision, that the majority of Committee members  
82  
Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52.  
At [51].  
At [51].  
83  
84  
85  
I note also at this stage in passing the opinion of Mr Paul Durdin, who confirms that in his opinion  
the alternatives proposed by the applicant were not reasonably practicable: affidavit of  
Mr Paul Durdin, 14 June 2022, at [7.2]–[7.4].  
who voted in favour of the traffic resolution were satisfied by his assessment of the  
options.  
[101] It is also, as I see it, not for this Court on judicial review now to second-guess  
why the Council did not consider some options as reasonably practicable. I am  
satisfied that in this case there is a proper evidentiary basis explaining why the Council  
proceeded as it did.  
[102] But, in any case here, while the Committee properly proceeded on the basis of  
the work of Mr Singh and his team, the Committee also, as I understand the position,  
did have before it the alternative options the applicant TQC claims the Council had  
not considered in its consultation. From Mr Singh’s evidence, he and his team had  
considered the majority of these alternative options in their meetings and workshops  
in any case, and discarded them as not reasonably practicable. The Committee then  
expressly asked Mr Singh whether alternative options had been considered. Mr  
Singh’s evidence is that he “listed some of the options and provided reasons as to why  
[they] had rejected those particular options”.86  
[103] I have read the transcript from the Committee hearing and I am satisfied that  
Mr Singh’s explanations as to why they discarded certain alternative options —  
including those proposed by the applicant TQC — as not reasonably practicable, was  
sufficiently fulsome here. Although Mr Singh did not explain the nature of the  
workshops he and his team undertook, he was not required to. It is necessary only that  
the Committee was properly satisfied that Mr Singh and his team had undertaken an  
adequate analysis into whether all reasonably practicable alternatives had been  
considered, and assessment made of their advantages and disadvantages.  
[104] I am satisfied the fact the Committee heard Mr Singh’s views expressed for his  
team and then voted in favour of the traffic resolution demonstrates sufficient  
assessment of the advantages and disadvantages of the alternative options proposed.  
Weighing up the advantages and disadvantages of options is something people —  
particularly Councillors experienced in such matters — necessarily do as part of voting  
86  
Affidavit of Mr Singh at [4.20].  
on a proposal. This is particularly the case where the options as here are either a  
proposed change or retaining the status quo.  
[105] In the Council of Social Services in Christchurch/Otautahi Inc decision, as I  
note above, Chisholm J found that a local authority’s decision was “not in conformity  
with the statutory regime” in circumstances where it had failed to assess all reasonably  
practicable options on a decision to increase rents for low-cost housing it owned.87  
However, I am satisfied that case involved a different scenario, in which the local  
authority was unable to adequately do so until it had received necessary information  
from the Government, which in fact it did not wait to receive before making its  
decision. That is an entirely distinct set of circumstances from the present situation.  
Conclusion  
[106] The applicant TQC argues that error occurred here in that the Committee did  
not have before it the information it would have needed to make its own assessment  
of the advantages and disadvantages of all the reasonably practicable options for  
achieving the objective of the decision it made. I do not accept this. The Committee  
explicitly raised with the Council officer Mr Singh the question of whether he and his  
team had considered alternative options. It then heard his evidence as to why certain  
alternative options had been discarded as not reasonably practicable. There is  
evidence in the form of the transcript of the Committee meeting demonstrating this.  
In the terms described in Minotaur, there is therefore an evidentiary basis explaining  
why the Council proceeded as it did.88 In these circumstances I am satisfied the  
Council, through the Committee as its delegated authority body, sought to identify all  
reasonably practicable alternatives for the achievement of the objective of the  
Decision, and assessed the advantages and disadvantages of those options.  
[107] It is not for this Court on judicial review to undertake an assessment of all  
options that were available to the Council in achieving public safety on  
Thorndon Quay. It is the role of the Court to assess whether the Council, through its  
delegate the Committee, had satisfied itself that in making its decision it had before it  
87  
Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52,  
at [59]–[67].  
Minotaur, above n 49, at [67].  
88  
 
all reasonably practicable alternatives for the achievement of the stated objective. In  
this respect, as I have noted, the Committee relied on the work done by its senior  
employee Mr Singh and his team, and it questioned him on this extensively, as  
evidenced in the transcript of the Committee hearing. I am satisfied the Committee  
had before it in this way all reasonably practicable alternatives, it acted  
proportionately, and it was entitled to proceed as it did.  
Issue two: consultation — did the Council fail to consult with businesses on two  
key matters?  
[108] It is accepted by all parties that because the Council undertook a consultation  
exercise on the traffic resolution, it was therefore required under the LGA to comply  
with the consultation principles set out in s 82 described above.  
[109] However, the applicant TQC maintains here the consultation process  
undertaken by the Council was generally inadequate. It says there was no need for an  
urgent timeframe and that it had advanced a good reason for an extension to the  
consultation period, namely the fact the businesses in the area were particularly  
affected by the traffic resolution and desired to compile a collective submission.89  
[110] The crux of the challenge under this head, however, is that the applicant TQC  
contends the Council failed to consult with businesses on two key matters and these  
omissions were in breach of the LGA. The two matters in particular are, first, an  
unstated objective that it is alleged the Council subsequently purported to rely on in  
making its decision, and secondly, an internal analysis of alternative options conducted  
by Council officers.  
[111] The “unstated objective” the applicant TQC refers to is what it says is the  
undisclosed aim of the Decision to increase the lateral space on Thorndon Quay. The  
applicant says because this objective was not stated, the Council failed to give clear  
information concerning the purpose of the consultation and the scope of the decisions  
to be taken following the consideration of views presented. The applicant says it was  
therefore unable to make submissions on this unstated issue of lateral space, an issue  
89  
Affidavit of Mr Robinson at [77]–[83].  
 
which, in reliance on the evidence of its expert economist Mr Harrison, it says has no  
empirical basis.  
[112] As will be evident from the foregoing analysis, I do not accept the issue of  
lateral space was an unstated objective of the Council. To the extent the Council had  
an inclination to increase the lateral space on Thorndon Quay, I am satisfied this was  
in pursuit of their real and overarching objective, which as I have noted was to improve  
cyclist safety. I do not accept the Council had and subsequently purported to rely on  
an unstated objective. Any consideration the Council had to the lateral space available  
was relevant only to the extent it impacted upon its real and stated objective of cyclist  
safety. This was clearly outlined and described. The applicant TQC and others in my  
view had ample notification of this and should have been fully aware of it.  
[113] The second major respect in which the Council is said to have breached s 82  
relates to its alleged failure to make publicly available an analysis of the reasonably  
practicable options, including the proposed change to parallel parks, that had been  
identified under s 77(1). The applicant TQC says this failure is significant given the  
evidence now that Council officers conducted such an internal analysis.  
[114] However, I do not accept the Council breached s 82 in any failure on its part to  
provide this information. I am satisfied in this instance the Council provided to the  
public reasonable access to all relevant information. The Council elected to undertake  
consultation on the traffic resolution, it provided information about the options it was  
considering, and in particular the proposed change to parallel parks. To a large extent,  
the internal analysis the Council conducted was irrelevant to any consultation, as the  
analysis was an assistive tool for its own consideration. Indeed, any consultation on  
the other discarded options included in that internal analysis would arguably have been  
disingenuous, confusing and actually impeded proper consultation. This was because  
the Council had already discounted those other alternatives — through the analysis of  
its officer, Mr Singh, and his team — as not reasonably practicable, and therefore not  
viable options.  
[115] Although the Council was only required to ensure that it would “promote  
compliance” with the s 82 principles, as an aside I add that it is my view here that in  
fact all of the consultation principles in s 82 were met in this case.  
[116] I am satisfied the Council here did provide reasonable access to the relevant  
information in a clear form. In particular, I note that on 19 May 2021 representatives  
from the applicant requested additional data that had been used to compile the Parking  
Analysis Paper. Mr Kylie Hook, for the Council, offered to provide that information  
to the applicant and did so on 28 May 2021.90 Though I accept this was not  
information that needed to be proactively released to the public, I believe this response  
from the Council to the request from the applicant demonstrates the Council’s interest  
to ensure it did provide all relevant information to interested parties.  
[117] I am also satisfied from all the material before the Court that the Council  
encouraged the public to present their views and that it provided an adequate period  
for its consultation.  
[118] I refer at this point to Part 7 of the Council’s Plans, Policies & Bylaws  
regulations, which part deals with traffic. Clause 12 of those regulations provides:  
12. Public notification  
12.1 Any resolution proposed under this Part shall be placed on the Council’s  
website at least 14 days before the Council considers it. Any person may  
provide comments, in writing, on the proposed resolution and those comments  
will be considered by the Council before it makes a resolution. Any person  
who has made written comments may request to be heard by the Council and  
it is at the Council’s sole discretion whether to allow that request.  
[119] Clause 12 represents the Council’s judgment as to how it undertakes  
consultation in relation to traffic resolutions. As can be seen, the Council’s position is  
that a two-week period of consultation will typically be sufficient. In the present case  
however, submitters were given four weeks to present their comments on the proposed  
resolution. The applicant TQC was given a further two days. While this might not be  
regarded as a generous extension, nevertheless I am of the view that overall the period  
of time provided for consultation was sufficient in this case.  
90  
Affidavit of Mr Kylie Hook, 13 June 2022, at [3.9].  
[120] The public also in my view had a reasonable opportunity to present their views  
here in a manner and format that was appropriate to their preferences. Both written  
and oral submissions were heard and considered. I am satisfied there is a clear record  
of the Council’s decision as well as explanatory material relating to that decision. This  
supporting material took the form of Mr Singh’s report recommending the adoption of  
the traffic resolution, an analysis of the relevant parking data, an analysis of the  
submissions received, copies of all those submissions, and accurate minutes of the  
meeting as well as a transcript.  
[121] Finally, there is nothing before me to suggest that the Council received the  
presented views other than with an open mind. The Council held two public meetings  
to discuss the proposed changes to Thorndon Quay generally.  
The Council  
acknowledges that the two meetings that took place between LGWM officers and the  
applicant might be considered now as unsatisfactory for both sides. However, there is  
nothing to suggest this represented a “closed mind” on the part of the Council. The  
officers present at those meetings were not the decision-makers. The decision-makers  
were the members of the Committee, who, as noted, were all elected Councillors.  
[122] I am satisfied there has been nothing put before the Court to suggest that the  
Councillors themselves approached the question with predetermination91 or with  
anything other than an open mind. They listened to submitters, considered their views,  
and, as evidenced by the transcript of the hearing, questioned and tested Mr Singh in  
terms of the work he and his team had done in recommending the change to parallel  
parks. In Friends of Turitea Reserve Society Inc v Palmerston North City Council,  
Baragwanath J held that “open minded” in a consultation context did not mean  
“without predisposition”, but rather, “prepared, despite predisposition, honestly to  
consider whether to change its mind”.92 On one view of matters, this may well have  
represented the situation here. Though the Council initially might have had a preferred  
option, namely changing the angled parking to parallel parking, I am satisfied the  
91  
Pre-determination on the part of the Council was raised before me as an issue on behalf of the  
applicant TQC, but it does not appear to be part of its pleadings here. Further, the Council and the  
Committee, as decision-makers, resolved to approve the Decision only by a 10 – 5 majority vote  
of councillors, which itself might be seen at one level as indicating the extent to which the  
councillors in their deliberations fully grappled with all the issues here.  
92  
Friends of Turitea Reserve Society Inc v Palmerston North City Council, above n 58, at [98].  
circumstances were such at the time that the Council would have been prepared to  
reconsider the position had, for instance, there been reasoned and strong overall public  
opposition to the proposal.  
[123] Having considered the position and all the relevant material, I am satisfied the  
Council undertook adequate consultation on its proposal in this case. In my view it  
complied with all of the principles of consultation as set out in s 82. I do not accept  
the applicant’s submission that the Council breached s 82 in failing to consult with  
businesses on the two key matters raised, namely an “unstated objective” and the  
internal alternative option analysis, as alleged.  
Issue three: discretion under s 79 — did the Council fail properly to exercise its  
judgment pursuant to s 79 of the LGA?  
[124] The applicant says the Council failed properly to exercise its judgment  
pursuant to s 79 of the LGA, which provision required the Council to make certain  
judgments. While it appears there is no record of those judgments before the Court,  
the applicant contends the record of what the Committee knew is clear, and it lacked  
the information necessary to properly make those judgments.  
[125] Section 79, according to the applicant TQC, is not a “de facto ouster clause”,  
the effect being that it need not comply with its decision-making obligations under the  
LGA. Instead the applicant argues s 79 imposes a further obligation on the Council to  
make a judgment about how to achieve compliance with its decision-making  
obligations. The argument follows that such judgments, once made, will colour the  
appropriate manner of compliance with those obligations.  
[126] Recalling the terms of the legislation, the applicant contended that the  
Committee, as the Council’s delegated decision-maker in this case, was required under  
s 79 to make judgments on how to achieve compliance with ss 77 and 78 in a manner  
that was largely in proportion to the Decision’s significance, in particular on:  
(a)  
(b)  
the extent to which different options were to be identified and assessed;  
the degree to which benefits and costs were to be quantified;  
 
(c)  
(d)  
the extent and detail of the information to be considered; and  
the extent and nature of any written record to be kept of the manner in  
which it had complied with ss 77 and 78.  
[127] The applicant says the Committee could not make the required judgments  
under s 79 at its 24 June 2021 meeting, because it was missing information necessary  
to do so. In particular, the applicant says the Committee did not know:  
(a)  
(b)  
(c)  
all the options considered by Mr Singh’s team;  
the reasons why Mr Singh’s team had rejected each option;  
the extent to which different options had been identified and assessed  
by Mr Singh’s team;  
(d)  
(e)  
(f)  
the degree to which Mr Singh’s team had quantified benefits and costs;  
the extent and detail of the information Mr Singh’s team considered; or  
the extent and nature of written records Mr Singh’s team had kept.  
[128] The applicant says the Committee therefore lacked sufficient information to  
make the required judgments under s 79 as to whether the extent, degree of  
quantification and detail of the assessment of options was appropriate to achieve  
compliance with the decision-making provisions.  
[129] The further submission is advanced that, because the Decision was said to be  
based on empirical evidence about safety and parking utilisation as set out in the  
Parking Analysis Paper, it would be reasonable to expect some level of quantification  
of costs and benefits. The applicant goes on to contend that, because the Council  
produced written documents for consultation, this must suggest it considered a written  
record to be appropriate, and therefore there is “no good reason” why this should not  
also be the case with respect to the Council’s assessment of all “reasonably practicable  
options”. At a basic level, the applicant says there is no evidence before the Court that  
the Council made the required judgments.  
[130] Mr Whittington for the Council strongly disputes this. He says the Council did  
record judgments about how it intended to achieve compliance with the decision-  
making and consultation principles. In this regard he points to the Council’s bylaw,  
which expressly records that traffic resolutions will be the subject of two weeks’  
consultation (which carries with it an implicit judgment that traffic resolutions are not  
generally considered of high significance, such that they would invoke the special  
consultative procedure or longer and more in-depth consultation). Mr Whittington  
does acknowledge that it would have been preferable for there to have been in  
existence a document identifying the options considered by Mr Singh and his team,  
with reasons why each was not considered reasonably practicable. However, the  
Council’s position is that the evidence presented to the Court demonstrates clearly the  
advice given to the Committee by Mr Singh was sufficient to ensure the Committee  
was satisfied it had before it all reasonably practicable alternatives.  
[131] In response, the applicant says it relies on the decision of the Court of Appeal  
in Whakatane District Council in this respect.93 In that case, the High Court had  
concluded that a judgment under s 79 could “be inferred from what occurred” and  
need not be separately expressed.94 However, on appeal the Court of Appeal rejected  
this approach. The Court of Appeal there held that the local authority “did not make  
any s 79 judgment at all” and the Court was “not prepared to share the assumption of  
the [High Court] Judge that somehow that did occur when no evidence supports that  
conclusion”.95 The applicant interpolates from this that the Court will not infer that a  
judgment has been made purely from the fact of the decision itself.  
[132] I accept the Court of Appeal Whakatane District Council decision to some  
extent is authority for the point the applicant makes. If a local authority on the basis  
of s 79 utilises its discretion so as to limit the extent and nature of compliance with the  
93  
Whakatane (CA), above n 56.  
Whakatane (HC), above n 52, at [71].  
Whakatane (CA), above n 56, at [78].  
94  
95  
legislative requirements, I accept that such a decision under s 79 must be made  
explicit.  
[133] However, I am of the view that the decision at issue in the  
Whakatane District Council case was clearly distinct from the decision in the present  
proceeding. First, the Court ofAppeal found that the Whakatāne District Council there  
did not fully comply with the decision-making provisions as it was required to.  
[134] And, importantly, in that case, the impugned decision was a decision to relocate  
the Bay of Plenty Regional Council from Whakatāne to Tauranga. This was, as all  
parties in that case accepted, a “significant” decision in the terms of the LGA.96  
Therefore, the Regional Council had to ensure that all requirements in the decision-  
making provisions were, in the terms of s 76(3), “appropriately observed”. Indeed, as  
the Court of Appeal noted in that case, in such a circumstance the burden of  
establishing that the obligation had been met lay on the Regional Council as the  
decision-making body.97  
[135] In the present proceeding, as noted earlier, the Committee assessed the  
Decision in question as one of “medium” significance. This meant the Committee, as  
delegate for the Council, was required to “promote compliance” with the decision-  
making provisions, but not necessarily to ensure that those provisions had been  
“appropriately observed” (which would have been the situation had the Decision been  
classed as “significant”). There is a clear distinction made in the legislation between  
those types of decision. Only in respect of “significant” decisions must there be full  
observance of each decision-making provision. The Whakatane District Council case  
involved a significant decision; the present proceeding does not. The standard of  
compliance in respect of the present Decision is lower and less burdensome than that  
required in Whakatane.  
[136] As I see the position, the decision in Whakatane differs in another material  
respect from the present. In that case the Council had accepted the recommendation  
to move and agreed “in principle” to the relocation, “subject to further detailed  
96  
At [15].  
See at [72]–[74].  
97  
investigative work on costs and accommodation”,98 prior to meeting with members of  
the community and undertaking consultation. In the case before me however, although  
the Council might have had a preferred alternative option when it went into  
consultation, I have found there was no predetermination or “closed mind” on its part,  
when the Council undertook public consultation on the proposal.  
[137] In making judgments under s 79, a local authority must have regard to the  
significance of all relevant matters, as well as to the principles relating to local  
authorities set out in s 14, the extent of that local authority’s resources, and the extent  
to which the nature or circumstances of a decision allow the local authority scope and  
opportunity to consider a range of options or the views and preferences of other  
persons.99 On these aspects the comment in Minotaur, where the Court of Appeal  
stated the sections give local authorities “a deliberately broad discretion as to whether  
to consult, and if so, how,”100 is notable.  
[138] I also note that in the Whakatane District Council case, the Court of Appeal  
observed that a court will not interfere with a discretionary judgment under s 79 unless  
it is irrational or made on a wrong legal principle.101  
[139] Here, the Council has advised the Court that the extent to which it resourced  
the Parking Analysis in terms of s 79(1) reflected the fact this Decision was seen as  
only a medium significance matter.  
[140] The major issue at play in this case is whether the Council complied with its  
legal requirements. Section 79, at its base, is concerned with compliance with those  
legal requirements, and in particular with ss 77 and 78. The applicant’s case is that  
there were reasonably practicable options available to achieve the objective of the  
Council which the Council here failed to consider. However, as I have found, the  
Council’s identification and assessment of all reasonably practicable options was  
adequate, and it complied in this way sufficiently with ss 77 and 78. I am of the view  
that where a local authority has complied with all the relevant decision-making  
98  
See at [36].  
Local Government Act, s 79(2).  
Minotaur, above n 49, at [42].  
Whakatane (CA), above n 56, at [76].  
99  
100  
101  
provisions, particularly in a situation where it is only required to “promote  
compliance” with those provisions, a failure by that local authority to record in writing  
its judgments made in exercising its discretion under s 79 as to how it will “achieve  
compliance” does not give rise to an error amenable to overturning by a court on  
judicial review.  
[141] In reaching this conclusion, I observe that while the Committee never expressly  
recorded its judgments as to how it would comply with ss 77 and 78, as the Court of  
Appeal noted in Minotaur, such is sometimes:102  
… to be expected. The Council cannot be required to meticulously record  
reasons for its approach to procedural detail as if it were a court. As s  
79(1)(b)(iv) implies, that would create too heavy a burden on a busy council  
with a finite budget.  
Rather, as the Court of Appeal said in Minotaur, “[a]n assessment of all relevant facts  
and factors is required with due deference to the breadth of the discretion. A  
punctilious approach must therefore be avoided.”103 Section 79 is at its heart a  
discretionary provision and due deference to the Council’s exercise of that discretion  
is warranted.  
[142] I note also there is nothing in the statute itself which stipulates that the  
judgments the local authority makes under s 79 must be expressly recorded. Though  
I do note the comments of the Court of Appeal in Whakatane that an express record of  
those judgments under s 79 was necessary, I consider the higher standard the Court  
said was required in that case must be seen in light of the facts there, and in particular  
the fact that the impugned decision was a “significant” decision in terms of the LGA,  
requiring all relevant provisions relating to the decision-making process to be  
“appropriately observed”, pursuant to s 76(3).  
[143] There is not here any specific record before the Court of the Council, either  
itself or through its delegate the Committee, making any express judgments under s  
79 as to how it would achieve compliance with ss 77 and 78. However, I repeat the  
Decision in this case was a decision of “medium” significance, and therefore required  
102  
Minotaur, above n 49, at [59].  
At [59].  
103  
the Council only to “promote compliance” with the provisions. And, as I have also  
found, the Council nevertheless achieved compliance otherwise with those  
decision-making provisions. Thus, despite there appearing to be no specific record of  
the manner in which it has done so, matters which s 79 is itself designed to achieve  
have been appropriately met. In these circumstances, I am satisfied there was no  
reviewable error on the part of the Council in relation to its exercise of discretion under  
s 79.  
Issue four: mistake of fact — did the Council proceed on material errors of fact?  
Alleged mistakes of fact  
[144] The applicant alleges the Council proceeded here on the basis of material  
factual errors in relation to two key assumptions underpinning the Council’s decision,  
namely:  
(a)  
(b)  
that the reduction in the number of parks would not have any adverse  
social or economic impact on Thorndon Quay businesses; and  
that parallel parks were comparatively safer for cyclists travelling along  
Thorndon Quay than the existing angled parks.  
[145] The applicant says both assumptions were critical to the Decision made, and  
as the assumptions reached by the Council were wrong and are reviewable, the failure  
of the Council to correctly determine those issues meant that its Decision proceeded  
on two false premises.  
[146] It is not asserted here that the Council proceeded to make its Decision on the  
basis of no evidence, but rather that the evidence relied on by the Council to support  
the Decision made was mistaken and therefore not reliable.  
[147] As the applicant asserts the assumptions made here were inaccurate, incorrect  
or unreliable, it contends the Decision is rendered unsafe and the Court must intervene  
to provide an appropriate remedy. In particular, correction of errors in material  
assumptions made here is necessary to ensure that the local authority fulfils its  
   
statutory obligation to assess options in terms of their advantages and disadvantages  
under the LGA decision-making framework.  
Law on mistake of fact  
[148] As acknowledged in a line of English cases, the courts can interfere where a  
decision-maker “has acted … upon an incorrect basis of fact”.104 A decision will be  
unlawful where “the decision-maker is shown to have misunderstood or been ignorant  
of an established and relevant fact”.105 As the Court of Appeal of England and Wales  
noted in E v Secretary of State for the Home Department, a mistake of fact giving rise  
to unfairness is a separate head of challenge.106 According to the Court in that case,  
the “ordinary requirements” for a finding of unfairness under this head are:107  
… First, there must have been a mistake as to an existing fact, including a  
mistake as to the availability of evidence on a particular matter. Secondly, the  
fact or evidence must have been “established”, in the sense that it was  
uncontentious and objectively verifiable. Thirdly, the appellant (or his  
advisers) must not been have been responsible for the mistake. Fourthly, the  
mistake must have played a material (not necessarily decisive) part in the  
tribunal’s reasoning.  
[149] Reasoning recognising the Court’s role in correcting mistakes of fact has been  
endorsed in New Zealand.108 In Ririnui v Landcorp Farming Ltd, the Supreme Court  
endorsed the English authorities and noted that a mistake of fact may be “made in  
circumstances which would render a decision based on it susceptible to review”.109  
The Supreme Court has observed, too, that the ultimate conclusion of a fact-finding  
body can “sometimes be so insupportable – so clearly untenable – as to amount to an  
error of law”, for instance where the true and only reasonable conclusion contradicts  
the determination.110  
104  
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]  
AC 1014 (HL) at 1047 per Lord Wilberforce.  
Bubb v Wandsworth London Borough Council [2011] EWCA Civ 1285 at [21], citing Begum v  
105  
Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430 at [7].  
E v Secretary of State for the Home Department [2004] QB 1044 (CA) at [66].  
At [66].  
See Daganayasi v Minister of Immigration [1980] NZLR 130 (CA) at 147–149.  
Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [54].  
Bryson v Three Foot Six Ltd, above n 15, at [26].  
106  
107  
108  
109  
110  
   
[150] To the extent that a decision-maker might have made an error of fact by being  
inadequately informed, the law is clear that the steps taken to be informed must be  
reasonable in the circumstances.111  
First alleged mistake of fact — no adverse social or economic impact of reducing the  
number of parks  
[151] The applicant says the Committee proceeded on the assumption that there  
would be no adverse impact on businesses because there were thought to be sufficient  
parks available to meet existing and anticipated demand for parks.  
[152] The Parking Analysis Paper relevantly described it in these terms:  
Key Findings  
…  
The parking on Thorndon Quay is mostly underused with 53 percent  
of 2 hour parking spaces occupied and 70 percent of 9+ hour parking  
spaces occupied at peak occupancy (weekdays from 8 am to 6 pm)  
…  
The data indicate that converting angle parking to parallel parking on  
Thorndon Quay has the potential to improve both safety and parking  
usage without negatively affecting visitors to businesses  
[153] The position was then articulated in the Consultation Paper as relevant as  
follows:  
Additional Information  
Parking surveys were conducted on the existing demand along  
Thorndon Quay. The result showed that the reduced number of car  
parks can meet the short-term parking demand while commuter  
parking demand is met elsewhere. …  
The surveys were conducted during the hours between 8am to 6pm on  
business days and assumes no parking occupancy during the morning  
clearway time 7am to 9am.  
The existing car parking space consists of 333 spaces made up of 274  
angled and 59 parallel parks between Tinakori Road and Moore  
Street.  
The data shows an average of 53% occupancy in the 2 hr restricted  
spaces and 70% in the 10 hour spaces. The average stay is 37mins.  
The reduced car parking numbers (202 spaces) are expected to be  
sufficient based on average occupancy. …  
111  
Taiaroa v Minister of Justice HC Te Whanganui-a-Tara | Wellington CP99/94, 4 October 1994.  
   
Based on short stay occupancy data the proposed reduction of parking  
spaces can meet the parking demand albeit some may not be directly  
convenient to all business customers. …  
[154] The applicant says the absence of any adverse effect on businesses was a  
critical component of the Decision. Had there been found to be an adverse impact, the  
applicant contends the Council would have been required to consider and weigh that  
impact against the suggested safety benefits, in line with s 77. This is plainly correct.  
I accept too that this issue was material to the Decision made.  
[155] Before me, the applicant brought evidence from six Thorndon Quay business  
owners in relation to claimed decreases in customers and revenue which is said to  
show the applicant was “demonstrably incorrect” in its assumption. The applicant also  
says the Council has itself experienced a substantial decrease, as much as 19 or 23 per  
cent, in the number of parking transactions, and accordingly in large measure to its  
revenue as well, in contrast to the Council’s predicted annual loss in revenue of only  
six per cent.  
[156] I consider this evidence however, being ex post facto, is of limited utility to the  
question of whether the Council wrongly proceeded on the basis of an incorrect  
assumption as to the social and economic impact of the proposed change. I accept the  
Council’s submission that the lawfulness of the Decision must clearly be based on the  
evidence the Council had (or ought to have had) in front of it at the time. The evidence  
of business owners adduced in this case which suggests the change to parallel parks  
has had an adverse effect on their businesses, while no doubt valid, is nevertheless not  
relevant here except to the extent to which it demonstrates what the Council either  
knew or ought to have known at the time the Decision was made as to the likely  
detrimental impacts on businesses.  
[157] I now turn to assess whether the Council’s conclusion that there would be no  
social or economic impact on Thorndon Quay businesses was one that was reasonably  
available to be made on the evidence and information before it.  
[158] The principal basis for the Council’s view that after the proposed change there  
would remain sufficient parking to meet demand was the Parking Analysis Paper. The  
applicant challenges the methodology adopted in that Paper. It submits that the Paper  
provided an unreliable basis for the conclusion that there would be no social or  
economic impact on Thorndon Quay businesses. This challenge is made on the basis  
of criticisms put forward by Mr David Wanty, the applicant’s expert transport engineer,  
who advances four fundamental flaws with the methodology adopted for the Paper,  
namely:  
(a)  
(b)  
(c)  
(d)  
the inappropriate use of averages;  
a failure to apply analysis in a practical way;  
a failure to consider off-street parking; and  
the inclusion of data collected during COVID-19 Alert Level Two.  
[159] I do not consider, however, it is necessary here to traverse each of these points  
in detail. It is sufficient for present purposes in my view to assess whether, in relying  
on the information in the Parking Analysis Paper, the ultimate conclusion of the  
Committee was, in the wording of Bryson v Three Foot Six Ltd, “so insupportable –  
so clearly untenable – as to amount to an error of law”.112 As the Supreme Court said,  
this will be the case if “there is no evidence to support the determination”; “the  
evidence is inconsistent with and contradictory of the determination”; or “the true and  
only reasonable conclusion contradicts the determination”.113  
[160] With all this in mind, I need to say at the outset that I do not believe the  
Council’s finding here that there would not be any adverse social or economic impact  
on businesses was so insupportable or untenable as to amount to an error of law. I am  
of the view that the Council’s belief that sufficient parks would be available to meet  
existing and anticipated demand for parks was an available determination given the  
evidence the Council had before it at the time of making the Decision.  
112  
Bryson v Three Foot Six Ltd, above n 15, at [26].  
At [26].  
113  
[161] On this aspect, the Council adduced evidence from its own independent expert,  
Mr David Smith, a transport planner. It is acknowledged by Mr Smith that there were  
some issues with the methodology employed in the Paper. However, generally  
Mr Smith considered other criticisms of the analysis were unjustified, and he advised  
that the process the author of the Paper followed and documented was, overall,  
appropriate and best practice.114  
[162] In particular, Mr Smith accepted the Paper could have been improved by  
“ground-truthing”, which refers to comparing the conclusions reached in the analysis  
to other periods as a cross-check to those conclusions. Nevertheless, Mr Smith had  
subsequently undertaken what is described as an “extensive ‘back validation’” and  
was apparently comfortable that the analysis was in what he described as “the right  
ballpark”.115 Recalling the wording from Bryson v Three Foot Six, I consider this  
shows that in no way is the evidence “inconsistent with and contradictory of the  
determination”.116  
[163] Mr Smith has also advised the Court that the fact the data contained a period  
when New Zealand was at COVID-19 Alert Level Two had only a “negligible” impact  
on the analysis.117  
[164] The Criticism can always be made of a Council in a situation such as the  
present that it did not send more people out to check and get more information. As  
Mr Whittington in his submissions suggests, “in a world in which costs of resourcing  
are irrelevant the Council would have employed an army of people to stand on  
Thorndon Quay all day, every day, for months, collecting data manually, peer  
reviewing and cross-checking, and then ‘ground-truthing’ the outcome.” This of  
course plainly overstates what the applicant is suggesting here. Nevertheless, as I see  
it, the point is well made. I accept that the steps taken by the author of the Paper here  
in relying on data gained from the sensors installed for this and other purposes, and  
consequently the steps taken by the Council in relying on this analysis, were entirely  
114  
Affidavit of David Smith at [5.8].  
At [5.12]–[5.19].  
Bryson v Three Foot Six Ltd, above n 15, at [26].  
Affidavit of Mr Smith at [5.20]–[5.31].  
115  
116  
117  
reasonable and were proportionate to the Decision required in terms of the manner of  
compliance with ss 77 and 78 under s 79.  
[165] I note here too that in particular Waka Kotahi, in its 2020 audit report of the  
Council, had insisted that the Council “needs to act now to implement an interim safety  
measure for cyclists.”118 As Waka Kotahi further commented in that report, in light of  
what was seen as a dangerous situation for cyclists, it was “vital that Council prioritises  
first on safety and second on convenience”.119 In such circumstances, I am satisfied  
the Council took adequate steps to inform itself then of the dangers to cyclists as well  
as the possible downstream effects of any change to the parking arrangement, which I  
now address.  
[166] To the extent that a decision-maker might have made an error of fact by being  
inadequately informed, the law is clear that the steps taken to be informed must be  
reasonable in the circumstances.120 This is to be seen within the context of s 79, which  
means it is a matter for the local authority to determine in its discretion and  
proportionate to the significance of the decision.  
[167] Here, the Council it seems took a number of steps to inform itself of the facts.  
These included collecting a substantial amount of parking data, considering crash data,  
taking advice from experienced Council officers, and consulting with affected parties.  
I accept the Council’s submission that in the circumstances, given the “medium” level  
of significance of the Decision, this was adequate. While more might have been  
expected if the Decision had been a “significant” decision, I am satisfied the Council  
adequately fulfilled its obligations here.  
[168] Moreover, due to consultation it undertook, the Council was well aware that  
business owners believed their businesses would be affected. This information was  
before the Committee and represented part of the material the Committee can be  
presumed to have taken into account in its decision-making. I am satisfied the  
Committee members would have weighed up these views as part of their decision on  
118  
2020 Audit Report, above n 5, at 19.  
At 19.  
Taiaroa, above n 111.  
119  
120  
how to vote in terms of the traffic resolution. The Council too subsequently declined  
to reconsider its position even following a petition from the applicant based on the  
alleged effects the business owners claimed.  
[169] I accept the Council’s submission that whether or not there would be sufficient  
parking available following the change to parallel parks was not a matter of objective  
fact. It was, at root, an assumption. The nature of the Council exercise was that it was  
attempting to predict a future unknowable. What the Council was required to do was  
to form the best determination it could based on the information available to it at the  
time.  
[170] As I see it, I am satisfied the Committee based that determination on its  
understanding of current usage, and it was entitled to rely as it did on the information  
before it as to this. While I accept there appear to have been certain issues with the  
methodology adopted for the analysis here, I am satisfied none of these amount to a  
finding that, in terms of the relevant tests, there was no evidence to support the  
determination, the evidence was inconsistent with and contradictory of the  
determination, or, in particular, that the true and only reasonable conclusion  
contradicted the determination.121  
[171] Accordingly, I do not consider the Council proceeded on an incorrect  
assumption or material error of fact in assuming there would be no adverse social or  
economic impact from changing the car parks.  
Second alleged mistake of fact — comparative safety for cyclists of angled and parallel  
parks  
[172] The second mistake of fact alleged by the applicant is that the Council  
materially (and wrongly) relied on the assumption that parallel parks were  
comparatively safer for cyclists travelling along Thorndon Quay than the existing  
angled parks. As the Council described the situation in the Consultation Paper, under  
the heading “Why we are proposing the change”:  
…  
121  
Bryson v Three Foot Six Ltd, above n 15, at [26].  
 
With the increase in people cycling along Thorndon Quay, the number  
of injuries incidents relating to cyclists have increased over the last  
five years. Amajor contributor to incidents on Thorndon Quay relates  
to conflicts between cyclists and motorists using the angled car parks  
Changing the parking layout from angled to parallel will improve  
safety for cyclists along this section of Thorndon Quay.  
[173] This assumption was clearly a material factor underpinning the Decision. It  
was relied on by the Committee in making its Decision. Indeed, the primary objective  
of the Council’s proposal to change the parking arrangement on Thorndon Quay was  
to improve the safety of cyclists travelling along the corridor.  
[174] However, the applicant says here the assumption that parallel parking is safer  
for cyclists than angled parking is demonstrably incorrect. The applicant argues the  
most directly relevant empirical evidence available to the Committee at the time of its  
Decision was inconclusive on this matter. On this, the applicant adduces evidence  
from its expert witness, Mr Ian Harrison, an economist. Mr Harrison has provided a  
report (the “Tailrisk” report) detailing statistical evidence of the relative safety of  
angled and parallel parking, as well as an affidavit-in-reply responding to the evidence  
of the Council’s expert witness, Mr Paul Durdin. The applicant has also filed two  
affidavits from Mr Wanty, who expressly records that he is a road safety expert.  
Mr Wanty in his affidavits, however, is silent as to the comparative safety to cyclists  
of angled and parallel parks.  
[175] The Council for its part points to an apparent dispute between the parties in  
relation to how road safety is assessed. According to the respondent, each of the  
Council, Waka Kotahi, and the Council’s independent expert, Mr Durdin, identify a  
clear safety flaw in the previous road configuration. The respondent suggests the  
applicant “believes everyone is wrong based on the opinion of an economist” and  
states the applicant’s road safety expert is “pin-drop silent” on the safety issue.  
[176] In particular, the respondent objects to the evidence of Mr Harrison. First, I  
take account that Mr Whittington for the Council argues that, for certain procedural  
reasons relating to the manner in which Mr Harrison’s evidence was admitted (the  
applicant having neglected to file an affidavit-in-chief from Mr Harrison as it should  
have done), the Council did not have an opportunity to brief an economist to determine  
whether Mr Harrison’s opinions are correct. I will not disregard Mr Harrison’s  
evidence, however, as Mr Whittington asks me to, but I do take account of this  
particular evidence bearing this in mind.  
[177] The more substantive and second point the respondent makes, in my  
estimation, is that in conjecturing about matters of road safety, Mr Harrison strays well  
outside his area of expertise. In the “Tailrisk” report, Mr Harrison makes a number of  
conclusions as to the comparative safety of angled and parallel parks in reliance on  
available statistical data. In his subsequent affidavit-in-reply, Mr Harrison expands on  
the views expressed in the Tailrisk report by way of critique of Mr Durdin’s  
conclusions with regard to road safety.  
[178] I make no criticism of Mr Harrison’s evidence as the applicant’s economic  
expert as it relates to economic perspectives. However, it must be acknowledged he  
is not a traffic or road safety expert. Accordingly, on questions of road safety, I put  
greater stead in the evidence of the witnesses with experience and expertise in road  
safety, namely Mr Wanty for the applicant and Mr Durdin for the respondent.  
[179] At this point I recall that the applicant’s expert on road safety, Mr Wanty,  
despite ample opportunity to do so, did not express any view on the issue whether  
angled parks or parallel parks were safer for cyclists. The Council highlights what it  
describes as an “extraordinary situation”, namely that even though the applicant’s case  
is based on a challenge to the view that Thorndon Quay was unsafe for cyclists, its  
own road safety expert does not give any such opinion. The Council invites me to  
draw an adverse inference from this. It suggests that any road safety evidence  
Mr Wanty would have given would not have supported the TQC’s case.122  
[180] I do not consider such an adverse inference is either necessary or warranted  
here. However, I accept that, as Mr Whittington for the Council somewhat tellingly  
points out in his submissions, “the [a]pplicant briefed reply evidence purporting to be  
122  
As the respondent points out, this is known as the rule in Jones v Dunkel, after Jones v Dunkel  
(1959) 101 CLR 298, which was subsequently adopted in New Zealand in Perry Corp v Ithaca  
Custodians Ltd [2004] 1 NZLR 731 (CA) at [144]–[155] as a principle of the law of evidence  
authorising the form of reasoning that evidence a party could be expected to have called would  
not have helped that party’s case (at [153]).  
road safety evidence from an economist, but failed to brief road safety evidence from  
its existing road safety expert.” On the question of safety, therefore, all evidence  
before the Court (apart from that of the applicant’s economic expert) suggests the  
previous layout of Thorndon Quay with its combination of angled parking and  
provision for cycling was unsafe, and that parallel park arrangements are generally  
safer for cyclists than angled parks.  
[181] Turning to that evidence, in particular I note in this respect the 2020 audit  
report of Waka Kotahi I refer to above at [14]. This report from Waka Kotahi came  
from it as a central government agency tasked with ensuring road safety and  
undertaking an audit of the Wellington road network. I am satisfied its advice  
constitutes a reliable opinion. In an earlier 2015 audit report, Waka Kotahi had  
identified only three safety issues (a paucity which I understand to be significant), one  
of which was the present issue, the safety of cyclists on Thorndon Quay.123 In the  
2020 audit report, Waka Kotahi was then even more directive. It stated:124  
At the last audit in 2015, we commented about the crashes on Thorndon  
[Quay] involving cyclists. On this audit, we observed that no recent  
improvements had been made to improve cycle safety on Thorndon [Quay].  
Counsel commented that improvements are being looked at to improve  
Thorndon [Quay], but these will be implemented as part of the “Let’s Get  
Wellington Moving” programme. This work programme is in its infancy with  
physical work many years away. This is too long. Council needs to act now  
to implement an interim safety measure for cyclists. The major conflict on  
Thorndon [Quay] is the conflict between cyclists and cars exiting the  
perpendicular car parks. A simple solution is to revise the parking orientation  
to all parallel car parks to mitigate the conflict. It is vital that Council  
prioritises first on safety and second on convenience in this situation.  
[182] The Committee clearly relied also on comments made to similar effect in the  
Parking Analysis Paper referred to above at [18]. As the Paper stated:125  
The crash history indicates that cyclists are at particular risk at Thorndon  
Quay. Cyclists were involved in 25 percent of crashes and represent more  
than half of serious injury crashes in the area …  
The data indicate that the current parking configuration is likely the main  
contributor to the large number of cycle crashes in the area. Of the 25 reported  
123  
Waka Kotahi NZ Transport Agency Investment Audit Report: Monitoring Investment Performance  
(December 2015).  
124  
2020 Audit Report, above n 5, at 19 (emphasis added). Waka Kotahi referred in its report to  
“Thorndon Road” but this was clearly meant to refer to Thorndon Quay.  
Parking Analysis Paper, above n 9, at 4–5 (emphasis added).  
125  
crashes involving cyclists in the area, 20 were related to parking. Of the four  
serious injuries involving cyclists, three related to parking. There are two main  
types of parking crashes: vehicles manoeuvring into or out of parking spaces  
and colliding with cyclists, and drivers opening car doors and hitting cyclists.  
Figure 5 shows that parking, especially angle parking, is a proportionally  
greater factor in cycle crashes along Thorndon Quay than it is for vehicle vs.  
vehicle crashes or crashes involving motorcycles and mopeds.  
[183] Again I consider this is evidence which reasonably supports the ultimate  
determination of the Committee in relation to the comparative safety of parallel and  
angled parking. The applicant does raise an arguably relevant point that in order to  
get an accurate understanding of the risk of any particular cyclist experiencing an  
incident, it is necessary to account for the relative proportion of angled to parallel  
parks. It contends the Council’s analysis was therefore wrong. In my view, however,  
the difference this makes to the overall analysis is negligible and the Committee was  
cognisant of this analytical limitation.  
[184] I note, moreover, that during the Committee’s meeting on 24 June 2021 at  
which the Decision was made, one Councillor asked Mr Singh about “the quality of  
our evidence about whether parallel parking is really safer than angle parking”. Mr  
Singh referred to the Austroads tool and a “large amount of data” collected  
internationally which had “basically determined that parallel parking is more safe than  
angle parking”. Given that the Council’s overarching objective in this Decision was  
increasing safety for cyclists, the Committee’s concerns were clearly satisfied. For  
my part I am satisfied that was an available position for the Committee to take.  
[185] It is not the place of the Court here to make an assessment for itself as to  
whether parallel parking is safer for cyclists than angled. The question for the Court  
on review is whether the Council was entitled on the basis of the evidence before it to  
make this assessment and ultimate conclusion.  
[186] I do not think this assumption was “demonstrably incorrect”, as the applicant  
alleges. Rather, I am satisfied that the evidence the Committee had before it  
reasonably supported this conclusion.  
[187] The threshold for a successful finding that the decision-maker proceeded on an  
error of fact is high. As noted, there will be an error of law on a material mistake of  
fact where “there is no evidence to support the determination”; “the evidence is  
inconsistent with and contradictory of the determination”; or “the true and only  
reasonable conclusion contradicts the determination”.126 I am of the view none of  
these wordings can realistically be said to accurately describe the Council’s conclusion  
here that parallel parks were comparatively safer for cyclists than angled parks. I am  
satisfied that on the basis of the evidence described, there was evidence supporting the  
Council’s determination that parallel parks were safer than angled parking, and indeed  
no evidence, apart from that of the Council’s economic expert, to suggest the reverse  
is true.  
[188] I accept that the evidence of Mr Durdin and Mr Smith in support of the position  
that parallel parks are safer for cyclists than angled parks has been adduced after the  
Committee made the Decision. The Council arguably might have done further  
research into the safety aspects of the proposed change, in terms of assessing the  
advantages and disadvantages of the proposal under s 77. Nevertheless, I recognise  
here that any such further research was entirely subject to the Council’s discretion as  
to how it would comply with ss 77 and 78 under s 79, and that in a decision of medium  
significance such as this, what the Council did in terms of informing itself as to the  
comparative safety of different parking arrangements was sufficient.  
[189] I thus dismiss the applicant’s argument that the Council, through its delegate  
the Committee, proceeded on a material mistake of fact in this regard.  
[190] For the sake of completeness, I note my view that the Committee took into  
account all relevant safety risks here. Any suggestion of safety risks due to an alleged  
increase in “U-turns” on the roadway or difficulties for businesses unloading stock on  
Thorndon Quay due to the changes is tangential, anecdotal and not information the  
Committee had (nor necessarily could or should have had) before it at the time.  
126  
Bryson v Three Foot Six Ltd, above n 15, at [26].  
Issue five: relief  
[191] The applicant seeks relief by way of declarations that the Decision was  
unlawful and invalid, an order quashing the Decision and an order requiring the  
Council to return all car parks along Thorndon Quay to their former configuration.  
[192] The Council for its part accepts that in the event the Court finds a material error  
has been made, a declaration to that effect would be appropriate. However, the  
Council argues the other forms of relief sought would be futile because of other  
changes proposed by LGWM. In particular, the Council says that by the time the Court  
came to consider the application, the Council and the LGWM would have determined  
the future layout of Thorndon Quay. The applicant submitted this argument is wrong  
as it seeks to pre-empt decisions that the Council has yet to make.  
[193] At the hearing before me, counsel advised that since this proceeding  
commenced, this has now occurred. As I understand the position, LGWM has now  
determined the concept road design for Thorndon Quay/Hutt Road and has confirmed  
funding for it. Construction is apparently expected to commence as early as March  
2023 and detailed design of the concept is now underway. Importantly for present  
purposes, the new road layout concept does not include any angled parking, but does  
include on-street parallel parking.  
[194] In this decision, having found the Council did not err in any way, I am not  
required to deal with the issue of relief. While the Council’s process could arguably  
have been better in certain respects as I have outlined above, I am satisfied none of  
these failures amounts to an error of law.  
[195] For completeness, however, I need to record that had I decided otherwise here,  
in any case I would have been hesitant to grant the full relief the applicant seeks.  
[196] In the ordinary course of events, where a decision-maker has erred in the  
exercise of public power, the claimant is entitled to relief.127 It is only in “exceptional”  
127  
Ririnui v Landcorp Farming Ltd, above n 109, at [112] per Elias CJ and Arnold J; and Air Nelson  
Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [61].  
   
circumstances that the Court will decline relief and there must be “extremely strong  
reasons” to do so.128  
[197] I am of the view that had I found a material error of law on the part of the  
Council, a declaration to that effect by itself would have been appropriate relief in the  
present case. I would take this approach for a number of reasons.  
[198] First, the role of LGWM in the future layout of Thorndon Quay cannot be  
ignored. At the outset, whatever decision the Council made was always going to be  
interim pending the implementation of the Thorndon Quay/Hutt Road project being  
undertaken by LGWM at the same time. It was as a response to the pressing issue of  
cyclist safety that the Council proceeded with its own traffic resolution process, but  
the final form of Thorndon Quay was always going to be that as determined through  
the LGWM process. As I have been advised, the current and foreseeable position is  
that the plan for Thorndon Quay which has been fully approved and funded by all  
three LGWM partners, and for which construction is scheduled to commence as early  
as March 2023, provides for parallel parking spaces only. In these circumstances an  
order quashing the Decision and requiring the Council to return all car parks to their  
former configuration in my view would be largely futile.  
[199] Secondly, the safety of cyclists is at play. As I have outlined above, there has  
been significant evidence at least to suggest that the former parking configuration was  
unsafe for cyclists and the current configuration is a safer one. An obvious question  
arises over whether, even if the Council had undertaken an improper process here, the  
safety of cyclists should now be put at increased risk as a result.  
[200] Finally, though I put less weight in this as a factor, I note that any order  
quashing the Council’s Decision would cause administrative inconvenience and waste,  
including possible further consultation and data evaluation. Particularly in  
circumstances where LGWM has now decided on a final concept for Thorndon Quay,  
this would be unnecessary and duplicative.  
128  
Air Nelson Ltd v Minister of Transport, above n 127, at [60], citing Berkeley v Secretary of State  
for the Environment [2001] 2 AC 603 (HL) at 616 per Lord Hoffmann.  
[201] Had the applicant been successful in these proceedings, a remedy would have  
been appropriate to vindicate the applicant for the Council’s breach of the law. Of that  
there is no doubt.129 However, I am satisfied a declaration to that effect — in  
combination with costs as the successful party — would have been sufficient  
vindication to the successful applicant in all the circumstances here.  
Result  
[202] It will be apparent for all the reasons I have outlined above that none of the  
grounds for review alleged by the applicant has been made out.  
[203] The application is dismissed.  
Costs  
[204] I heard no argument on costs. I see no reason why the Council, as the  
successful party, should not be entitled to an order for costs and disbursements in the  
usual manner. However, I urge the parties and counsel to liaise amongst themselves  
with a view to determining costs, failing which I will receive submissions  
(sequentially) from the parties (to be no more than five pages in length) and I will  
determine the issue of costs on the papers.  
Gendall J  
Solicitors:  
Robert Kirkness Barrister, Gibson Sheat and James Tocher Barrister for the Applicant  
Nick Whittington Barrister for the Respondent  
129  
Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [1].  
   
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