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When the rubber hits the road - All aboard Aotearoa's challenge

When the rubber hits the road - All aboard Aotearoa's challenge

When the rubber hits the road - All aboard Aotearoa's challenge

Tuesday 11 October, 2022

In his recent decision dismissing the challenge by All Aboard Aotearoa Inc (All Aboard)  to the Auckland Regional Land Transport Plan 2021, Justice Venning considered the purpose of the Land Transport Management Act (LTMA), and what a plan must do to contribute to that purpose and to be consistent with the Government Policy Statement under that same Act. He also considered whether Auckland Council’s decision to endorse the Plan was contrary to its own Climate Plan Te Tāruke-ā-Tāwhiri.

The LTMA required the preparation of both a Regional Land Transport Plan (RLTP) and a Government Policy Statement (GPS). It requires that, before adopting a RLTP as required by the LTMA, section 14 requires a Regional Transport Committee (RTC) to be satisfied that a RLTP both contributes to the purpose of the LTMA and is consistent with the GPS. All Aboard considered that there were no reasonable grounds on which the RTC could have been satisfied on either point.

Justice Venning considered what it is to be “satisfied” and found there to be a distinction between the fact driven satisfaction of effects in the RMA context and the satisfaction required in matters of policy that follow consultation processes. The satisfaction required by section 14 of the LTMA is an evaluative exercise for elected officials in which the Court will be reluctant to interfere. While some have suggested that a more intensive standard of review should be applied in climate change policy matters, here his Honour considered that the question was simply whether the decision-maker has acted in accordance with the power and with any other relevant requirements. The suggestion that a different standard should apply to climate change decisions then begs the question of what is and is not a climate change decision.

Justice Venning did not accept All Aboard’s suggestion that the public interest purpose of the LTMA necessarily required the consideration of climate change and found that any consideration of that matter under section 14 would turn on the priorities set out in the GPS. The current GPS has climate change as one of 4 priorities. All Aboard were of the view that, to be consistent with the GPS, the Plan must make the greatest contribution possible to reducing emissions, and that it was incorrect to say that any contribution to reductions constituted consistency with the GPS. His Honour did not agree and found that there was nothing in the GPS or statutory regime that requires all decisions to be in service of this priority. All Aboard’s challenge to the RTC decision was therefore dismissed.

The second challenge was against the Auckland Council Planning Committee’s non-statutory endorsement of the RLTP. While this is not a decision required by the Act, it is none-the less amenable to review and All Aboard claimed that the decision failed to meet the requirements of sections 76, 80 and 14 of the Local Government Act 2002 (LGA). Justice Venning did not agree that the Planning Committee had the option of amending the RLTP before it for endorsement. To require changes to the RLTP would have required the Committee to step on the toes of the RTC and Auckland Transport. A challenge to this non-statutory decision of a Council committee was one of the few ways to invite scrutiny of what All Aboard perceive to be the lack of climate action by elected officials. In the end Justice Venning found that the decision to endorse the RLTP was one open to the Committee on the information before it and did not take the matter any further.

All Aboard also argued that the decision to endorse the Plan should have been clearly identified as inconsistent with Auckland Council’s Climate Plan Te Tāruke-ā-Tāwhiri and the failure to do so was a breach of section 80 of the LGA. However, Te Tāruke-ā-Tāwhiri is a voluntary plan, not one required by the LGA or any other Act and so section 80 was not engaged. Even if it was, the Court found that it would not have been triggered as section 80 only requires significant inconsistencies to be identified. The Court characterised this standard as requiring a departure from what the Council had previously said it would do. In this case, both the RLTP and Te Tāruke-ā-Tāwhiri aim to reduce greenhouse gas emissions, albeit at different rates as they are for different purposes. There is therefore no significant inconsistency. The challenge to the Planning Committee’s decision therefore also failed.

We understand that All Aboard have appealed this decision, and Auckland Council’s Environment and Climate Change Committee has also since adopted the Transport Emissions Reduction Pathway, a non-statutory document to give effect to Te Tāruke-ā-Tāwhiri’s required 64 per cent reduction in transport emissions.

This case, along with the recently heard but as yet undecided cases of Smith v. Fonterra Co-Operative Group Limited and Lawyers for Climate Action NZ v. The Climate Change Commission represent a growth in litigation brought by those looking for ways to hold central and local government to commitments that they have made to reduce emissions, and this will increasingly be an area to watch.


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