Council cycleway win, but community ‘friction’ on the rise

Wednesday, 1 May 2024

The High Court has dismissed Foodstuffs’ argument that the council did not follow proper process over the Thorndon cycleway.

The news arrived just before a briefing updating councillors on the roll-out of the cycleway network, which will eventually see 166km of bike lanes linking the suburbs to the city.

Chief planning officer Liam Hodgetts told councillors the accelerated roll-out of cycleways across the suburbs had been “effectively 30 years of work achieved in three”, but had taken a toll on staff.

“There has been lots and lots of friction in the community as we’ve tried to transform these streets. The instances of concern by the community often translate into quite awkward and sometimes volatile interactions,” he said.

The latest measure the council had taken to keep staff safe was bringing security guards along to public meetings about cycleways.

The fractious environment around cycleways has seen several court cases defended by the council. In recent years there have been numerous attempts to judicially review the council over the Newtown leg of the cycleway network, changes to car parks on Thorndon Quay, and a pedestrian crossing on Cobham Drive. All challenges have failed.

The Foodstuffs judicial review has been brewing since last year when the supermarket sent a lawyer to make submissions during its 5-minute speaking slot at hearings about the Thorndon Connections leg of the city’s cycleway network.

Foodstuffs opposed the cycleway because it would cross both driveways of its local franchise, the Thorndon New World. Foodstuffs wanted the cycleway on Molesworth and Murphy St moved away from its driveways to the other side of the road.

Hodgetts said later they were pleased with the court’s decision. ,'

“We have consistently placed a strong focus on good process in delivering our cycleway network. We remain committed to listening to and addressing business and community needs.”

Councillor Rebecca Matthews said the council “keeps winning” legal challenges, which gave her confidence the transport projects were following good process. She hoped the latest victory would make other judicial review applicants think carefully before pursuing a legal route.

The council had also landed in court over the Newtown cycleway, parking changes on Thorndon Quay, and Let’s Get Wellington Moving’s Cobham Drive crossing.

“We do work with communities from the early stages, and we’d rather people use that opportunity to make changes,” Matthews said.

In its judicial review, Foodstuffs argued the council had failed to consider putting the cycleway on the left side of the road instead of the right.

The supermarket giant also claimed it had not been properly consulted or given natural justice, and that the decision to approve the cycleway was unreasonable.

Justice David Johnstone, in the High Court, dismissed all of the supermarket’s claims.

The council, having already made the decision to install the Paneke Pōneke bike network across the city, was not obliged to move forward by consulting communities on the exact placement of the cycleways.

“A procedure that commenced with consultation upon the issue of placement of cycleways would have been too open-ended and prone to inefficiency and delay,” the judgment said.

Council staff had clearly considered the option of a left-sided cycleway but decided against it. On the left side, the cycleway would have passed a motorway on-ramp and off-ramp where traffic would be moving at a high speed and in greater volumes than the supermarket driveways.

Reports from staff outlined that Foodstuffs had objected, and grappled with their arguments, so the supermarket’s views had been considered.

“The essence of Foodstuffs’ complaint in this area is that it does not agree with the council officers’ substantive assessment,” the judgment said.

As part of the court case, both the council and Foodstuffs called expert evidence about whether it was reasonable to have a cycleway located on the right-hand side of the road.

The evidence did not expose irrationality from any side, the judge wrote.

“[I]n my view the council’s right-side choice was very far from being a decision that no reasonable local authority could have reached.”

A Foodstuffs spokesperson said they were disappointed with the outcome of the judicial review.

“Our motivation has always been to ensure appropriate safety measures are taken into consideration by the council and its vital to get this right to ensure the best outcome for our customers and cyclists. We’re respectful of the decision and having a safe and accessible cycling infrastructure for the community is something we support.”

Foodstuffs and the Wellington City Council have both been approached for comment.

CORRECTION:** The council has not yet decided whether it will pursue costs for its legal expenses responding to Foodstuffs’ judicial review. (Amended at 11am, May 2 2024)**