This is a guest post by Regan from Island Bay Healthy Streets. The post is republished with permission.
A group of six Wellington businesses who are taking Wellington City Council to court over plans for a temporary cycleway from Newtown to the CBD have won an injunction to stop the work until the judicial review can be heard in September.
Four of the six businesses are involved in the motor industry and active transport advocates were quick to point out the hypocrisy of car-yards taking the council to court over a perceived lack of consultation on a traffic management issue when they have benefited for years from an “informal agreement” with WCC (i.e. never consulted on) to use Kent & Cambridge Terrace for the loading and unloading of cars from transporters. Car-trucks loading and unloading in the road is a nation-wide issue (check out the #cartruckparty hashtag on social media) but this particular case takes it to a new level.
It requires a special sense of entitlement to take the council to court for lack of consultation on a temporary cycleway when you’ve been (informally) given a free-pass to conduct your business in the middle of the road for years, creating exactly the kind of health and safety risks for the public that a cycleway might help to mitigate.
Stuff’s report Cycling advocates criticise car trucks in backlash over court case provides a good overview but also raises a lot of additional questions. The whole scenario is an almost perfect exemplar of how car dependency multiplied by status quo bias can lead to some really lazy decisions and crappy city-making. So you want to make a change that benefits cars at the expense of other road users? Sounds legit. No need to consult, just go for it! Want to make a change that benefits other road users at the expense of cars? How dare you? See you in court buddy!
The report quotes WCC as saying the car trucks “do have an exception to the blanket prohibition of double-parking under the Land Transport Act” and the council is not specifically authorised to implement further conditions on that. I assume the reference to the Land Transport Act is actually the Land Transport (Road User) Rule 2004 6.20 which contains exceptions to the rules on Stopping & Parking. However, the relevant exception for goods vehicles does come with conditions.
The loading or unloading must “take place with due consideration for the safety and convenience of other road users” and “alternative access for the purpose of loading or unloading the vehicle was unavailable” or “it was unreasonable to require the alternative access to be used”.
So who decides what is “safe and convenient” and “reasonably available alternative access”? Straight away we can see the potential danger of status quo bias within a heavily car-centric and car-dependent transport network at the expense of the interests of “other road users”.
WCC have tried to partly answer the question above with an “informal agreement” (their words). More questions though:
- Who is this agreement between?
- When was it made and for how long?
- Who signed it off?
- Who was (and wasn’t) consulted?
- Is this even legal?
Kia ora koutou. We’d like to take the opportunity to provide some further clarification regarding this matter.
Many of these car yards in this location are not able to accommodate a transporter and a practical solution was required to effectively manage this.
— Wellington City Council (@WgtnCC) June 10, 2021
- How did they decide what “safe and convenient” means in this context?
- How did they balance the various interests involved?
- How might that have changed in the interim?
- What was the test for “readily available alternative access”?
- Whose needs were prioritised?
In this 2019 LGOIMA response to Twitter user @dylanp WCC makes a number of confusing and contradictory statements including; they don’t authorise the practice, but they don’t think its practical to stop the practice, but they reserve the right to take enforcement action.
Setting aside the issue of whether WCC can make an “informal agreement” without consulting other road users or being transparent about their decision-making process it’s clear they have known for years that the car trucks are not complying with the “rules” they informally agreed to anyway.
The car trucks are often seen operating during peak hours. They often occupy more than one lane and use a lane that is not the kerb-side lane. And they are definitely not using appropriate traffic management or Worksafe best practices such as cones and signage.
Other road users can’t bend or ignore the rules just because the rules are inconvenient. What the car trucks are doing doesn’t give “due consideration to the safety and convenience of other road users” and there are “reasonably available alternatives” to the way they currently operate. They can obviously operate outside peak hours.
Personally, I think they should only be able to do this activity between midnight and 6am. They can also make sure they only ever use the kerb side lane by using single deck trucks that aren’t affected by the over-hanging branches. They must use appropriate traffic mgmt. I’d like to know whether WCC has ever checked that the car truck companies have sought advice on traffic management as agreed and whether they are following the Traffic Control Devices Manual and Code of Practice for Temporary Traffic Management.
Even more questions:
- As the delegated Road Controlling Authority has WCC ever received a traffic mgmt plan from a car truck company or been consulted on one?
- Has WCC ever conducted a temporary traffic mgmt safety audit of a car truck company?
- Have reasonably available alternatives ever been properly explored?
It’s just not good enough (and reveals status quo bias) for WCC to say “we don’t believe it’s practical to stop the practice because most of the car yards would not be able to accommodate a transporter”.
Here’s a few alternatives that could be explored for this specific location. Why can’t the car trucks use Hania Street to load and unload? Convert it to one-way northbound to get rid of the current southbound rat-run and designate a couple of long loading zones.
Gazley Mitsubishi is also currently leasing this section of land near the Basin Reserve which would easily allow a car transporter in and out. Why can’t they use that to do the loading and unloading for all their Kent and Cambridge Terrace locations?
Not even joking here, with the advent of e-scooters car yard staff could be ferrying cars to and from the yards from just about any location in the city. Just scoot in one direction and chuck the scooter in the boot for the other. Seriously, why can’t they do that?
The answer of course is that they don’t want to incur any additional costs of doing business, no matter how small or reasonable, and would rather that the public subsidise their operations through provision of free parking, disruptions to traffic and increased risk to health and safety.
It’s really up to WCC, the car yards and the car- transportation companies to reconsider what “alternative access” looks like in the current context because things have moved on quite a bit since this cursed “informal agreement” was originally made, including the implementation of a lot of new WCC policy.
Ultimately the best thing for the city overall is that the car-yards aren’t on Kent and Cambridge Tce where they are not only tying up developable land but also also obstructing the transport system improvements that go hand in hand with higher density.
WCC has already received a few LGOIMA requests for information about the “informal agreement” but I reckon they need to go a lot further than just a passive response bounded by the limits of the Act.
I hope they will front-foot this with a more comprehensive response that acknowledges a mistake was made, considers changing circumstances and expectations, and proposes a way forward. I also hope that the three Pukehīnau councillors (Tamatha Paul, Iona Pannett and Nicola Young) and the other hopefuls such as Afnan AL-Rubayee will apply some political pressure to review the “informal agreement” and make changes more aligned with WCC policy, the relevant legislation and good city-making.
Finally, you’ll notice that apart from the first paragraph I haven’t really mentioned the judicial review at all. The review will stand or fall on its own merits. Although the situation with the car transporters and the “informal agreement” highlights a certain amount of hypocrisy around the judicial review it’s still an issue well worth discussing in its own right.