On Friday last week, the High Court released its decision on the All Aboard Aotearoa (AAA) vs Auckland Transport and Auckland Council judicial review. The topic was the decision-making around the Auckland Regional Land Transport Plan (RLTP).

This plan estimates its investments will lead to an estimated 6% increase in Auckland’s transport emissions by 2031, and that the Government’s clean car policy and shift to biofuels mean the final result will be a paltry 1% reduction. This assumes those policies will be implemented and effective at cutting emissions.

By contrast, Council’s Te Tāruke-ā-Tāwhiri: Auckland’s Climate Plan (TTT) requires a 64% reduction in transport emissions by 2030.

Despite the stark difference in these figures, the judge said:

At a general level the RLTP itself is not significantly inconsistent with TTT given that it expects to lead to a reduction in GHG emissions by 2031. Both TTT and the RLTP aim to reduce GHG emissions albeit at different rates and by different methods.

We look forward to seeing our readers’ comments on this.

AAA’s press release after Friday’s decision says:

All Aboard Aotearoa argued that AT and the Council acted unlawfully in adopting the plan.

The Court decided that AT and the Council had not acted unlawfully in adopting the RLTP, noting that the RLTP involved high-level policy judgments which the Court was not in a position to evaluate.

“The decision is not an endorsement of the RLTP itself, but a finding that the high threshold of unlawfulness was not reached. We are nevertheless disappointed with the decision…” says All Aboard Spokesperson, Zoe Brentnall.

Legal decisions are interesting because it’s not always obvious immediately what the implications will be. One thing is clear about this case: a lot of information has been made publicly available. From Greater Auckland’s point of view, this is a successful outcome. In particular, the case files detail Auckland Transport’s departure from stated strategy, which allows the AT Board to take informed action to get the organisation on track.

One of AAA’s experts got to the nub of the problem, pointing out that the main architect of the RLTP:

appears to believe the choice is between a pathway that will impact negatively on wellbeing, or a pathway that will fail to meet the emissions goals in the timeframe required. This dichotomy is false. It is recognised and accepted throughout the transport sector, both in New Zealand and internationally, that there are many interventions that can meet both wellbeing and climate objectives.

Essentially, the “win” for Aucklanders is that the case has shaken many problems like these out into public view. There are lessons here for many parties, including Auckland Transport and Central Government.

Our first post is about Auckland Council.

Auckland Council wasted an opportunity to exercise control over Auckland Transport

Auckland Council was involved in this legal case because AAA asked for a judicial review of the Planning Committee’s decision to endorse the Regional Land Transport Plan before it went to the AT Board for approval.

To understand why the decision to endorse the plan was important, we need to recap what the CCO Review found about transport strategy in July 2020.

A CCO is a “Council-Controlled Organisation” but Council control has been difficult. In the case of transport, the CCO Review said:

Auckland Transport assumed responsibility from the council for setting the city’s transport priorities in the regional land transport plan when the Land Transport Management Act 2003 was amended in 2013. The changes amalgamated two planning documents, the council’s regional transport strategy and Auckland Transport’s investment programme, into a single document, the regional land transport plan, which Auckland Transport was given responsibility for approving. The change left the council in a unique position among local authorities of having no statutory role in developing the transport strategy in its jurisdiction.

This amendment, in our view, was wrong in principle and at odds with the intent of Auckland’s local government reforms, which was to give the CCO responsibility for preparing a regional transport plan and the council responsibility for approving it to ensure consistency with its own land use planning as well as central government legislation and policy. We did consider whether to recommend a legislative change to bring about this intent, but we concluded a non-legislative approach could achieve the same outcome more quickly and simply. This would involve Auckland Transport and council staff working collaboratively to develop the regional land transport plan, which the governing body would endorse before going to the CCO’s board for approval. Auckland Transport said this approach would help create a “single source of the truth” about Auckland’s transport future.

The review led to two changes:

  • The expectation of more collaboration between Council and AT in developing the RLTP.
  • A new tool of governance for the Councillors: the ability to endorse, or decline to endorse, the RLTP.

So, if the collaborative planning didn’t lead to an RLTP that met Council’s climate goals, Council could decline to endorse it.

When it came to the 2021 RLTP, the collaborative planning clearly failed. The Planning Committee should have exercised their right to decline to endorse the plan, given its enormous implications for climate change. They chose not to.

What was going on? Does exercising powers that will actually force change feel uncomfortable?

Council sought to prove their powerlessness

When challenged on whether they should have used the power given to them with the introduction of the new “endorsement” step, Council could have chosen to reflect on their endorsement decision, and to accept that it was inconsistent with their responsibilities.

Instead, Council argued in court that the decision to endorse the RLTP was effectively useless anyway:

the Planning Committee Decision was not a formal statutory step in the process of adopting the RLTP and was not the exercise of a statutory power in terms of the Judicial Review Procedure Act 2016.

The judge found in their favour, saying:

the Planning Committee had no power… The suggestion the Planning Committee should have required AT to make changes to the RLTP was misplaced as it would have involved the Planning Committee stepping into the roles assigned to the RTC and AT under the LTMA.

But the CCO Review Independent Panel had said that it was “wrong in principle” that the Council didn’t have this responsibility for approving the RLTP, and had established the endorsement step specifically to overcome this problem.

Who is right? The judge, or the CCO Review Independent Panel?

Furthermore, if Auckland Transport’s agreement to the new approach was genuine, Council could have used the new tool without any party having any reasonable cause of complaint about process.

So why was this made so complicated?

At the time the endorsement step was being introduced, did the Council’s legal advisors advise the Councillors they were being equipped with a new power of governance? If so, why did they argue the opposite in court?

Alternatively, did the Council’s legal advisors warn the Councillors that the CCO Review recommendations were toothless, at the time? If so, has Council been seeking a legislative change to ensure that the Council has a formal role in developing a strategy?

Have they also been seeking an interim fix until that was achieved?

Is the reality that the Councillors endorsed the RLTP, not because they felt they had no choice, but because they were lacking in vision? Despite the need to plan for a sustainable future, perhaps they could not actually imagine requiring the business-as-usual systems to change… and when challenged, just went along with any legal excuse to justify their decision?

No one ever said forcing unsustainable systems to change would feel comfortable.

A timeline of Auckland commitments on climate change from 2012 to 2020.

Council argued the Councillors don’t have to follow their own plans

In AAA’s submission, they laid out the legal argument for why, when making a decision, the Planning Committee needs to give careful consideration to the impact of that decision on the overall integrity of relevant policies.

Council’s response? They denied that Te Tāruke-ā-Tāwhiri : Auckland’s Climate Plan is a plan or policy to which this applies.

Let’s take stock here, because it is hard to imagine this argument will sit well with the Councillors who oversaw the drawing up of the Climate Plan, and the team who did the work.

What Council’s lawyers argued is that Auckland’s Climate Plan – which lays out how Auckland is going to decarbonise its systems for a sustainable and equitable future – is not something the Councillors need to consider when making decisions.

This isn’t in the public interest. It severely undermines Council’s extensive climate policy work. And it’s surely time to find out why.

Would Council care to give the public a list of “real” plans, and another one of the “pretend” plans that the Councillors will ignore when they make decisions? It would help if each consultation could be tagged as “real” and “pretend” too, so we don’t have to waste time on pointless submissions.

Council’s position involved breaking the commitments to C40

In February 2021, the Environment and Climate Change Committee (which includes all Councillors) voted unanimously to maintain Auckland as a member of the C40 Cities Climate Leadership Group and to adopt the 2021 C40 Leadership Standards.

The following table sets out how Council’s position on this judicial review has broken their commitment to these standards:

In short, this case blows a hole through Auckland’s C40 membership commitments.

During this election campaign, we need to hear visionary leadership about climate action from candidates – but it needs to be genuine. If Councillors try to talk up their climate credentials to date, will they also offer practical solutions to the pickle Council have put us in, which seems to result from of a lack of consistency and integrity?

Council has created a crisis of democracy

Te Tāruke-ā-Tāwhiri was the culmination of years of community-wide advocacy and internal Council policy work. It was created via a democratic process that required commitment from the public in time, resource and effort, as well as ratepayer-funded Council resource.

As Council argued the Councillors do not need to consider the impact of their decisions on the integrity of the Climate Plan, we can conclude that Council’s engagement processes lead to plans that are ignored anyway, so engaging is a poor use of our time.

Do the Councillors and Council Officers understand that this is a crisis of democracy, and all these problems must be resolved urgently if Council wish to proceed with any credibility?

The implications of this case could be immense, for Auckland Council and its CCO’s, throughout New Zealand, and in particular, for the youth of the country.

What this means for the Transport Emissions Reductions Pathway

When the Planning Committee endorsed the RLTP, they acknowledged its shortcomings, and established another process, called the Transport Emissions Reductions Plan, or Pathway (TERP).

The decision released last week introduces an extra challenge for Council, which is now relying on the TERP to bulk out the transport aspects of Auckland’s Climate Plan, giving Auckland Transport the extra guidance that seems to be needed.

Early presentations from the TERP team show it’s been approached with the sort of contemporary transport understandings that were thin on the ground in the RLTP. Assuming the TERP improves upon the RLTP, the Councillors need to approve it. Indeed, approving the TERP is a critical step to tidying up this mess the Councillors and Council have helped create.

They have another task, too. As a result of this judicial review, it is apparent that Council must proactively find a way to give the TERP a legal standing that will force Auckland Transport to implement it. If they can’t achieve this prior to the adoption of the TERP, it must be achieved soon after.

This is election year

Rome has been burning while Council earnestly argued they have no power or responsibility.

This year, we’ll be seeing lots of promises. But what we need is strong leadership, confident about tackling the enormous challenge of addressing climate change.

And a Council group providing consistent support.

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  1. Ask candidates at every election meeting, do they think Auckland’s Climate Plan should be a real, or just a pretend plan.

  2. In my opinion no plan should be legally binding, otherwise we will just see watered down plans that the council can’t possibly be sued for. Also the make up of council will change continuously, why should they be forced to go along with a plan made up by some previous councillors? If a right wing council came in and made a plan for roads galore, should that be legally enforceable forever?
    I would prefer a democratic system where the councillors do what they want and we vote them out if its not what we want.

  3. We can all be happy we live in a system where the courts don’t get to invent the rules. I don’t think we have been afflicted with an activist judge since Robin Cooke.

    1. Miffy, simply not true. There are all sorts of areas where legal precedent creates the rules. Yes there is the overriding legislation, but the decisions interpret that law, and create law.

      1. Yes but the point is the useful precedents are those that tell us how the law is to be interpreted. The King Salmon case told us avoid meant ‘not allow’ rather than some vague ‘ dont do it unless we want to do it’ time nonsense. They also told us ‘give effect to’ means implement rather than make something up as you go along.

        The flip side is when judges use their position to achieve political reforms better left to elected people. The principles of the Treaty of Waitangi is a good example. Cooke could have simply ruled Te Tiriti binds all and what it says is law. Instead he rewrote it as he wanted it to be. Somehow tino rangatiratanga became partnership. So Geoff Palmer had to amend legislation to reference principles to avoid a crisis.

        The USA is even worse at this. Politics is messy but it is better than some appointed judges making laws.

  4. I think most people don’t care about climate change. If they did, our politicians would too. Most care more about getting from A to B by car. They are much more concerned with the price of fuel, traffic congestion and parking than any other consequences of auto-dependency.

    1. The limited evidence of opinion polls suggests people do care about climate change eg see https://iag.co.nz/content/dam/corporate-iag/iag-nz/nz/en/documents/corporate/climate-change-survey-results.pdf. I think there’s a case for a Lord Clarke to override the bureaucrats and timid politicians and rule in favour of what most people seem to want. If most people really do want climate change they could then vote for politicians who could legislate to reverse the ruling. The trouble is we also have judges who are part of the bureaucracy.

    2. “I think most people don’t care about climate change“

      Oh, based on what evidence? The majority of people routinely poll as being concerned about climate change

      1. People believe they care about climate change, but most won’t take actions and will be quick to complain when sacrifices are required. This feeds into local and national policies.
        I have access to a free car park at all my regular destinations, but I choose to cycle (even these wet days). If I’m home alone I don’t turn the heater on (I have a wool hat), etc
        I have friends and family who “care” about climate change, but really they care more about driving and access to car parks.

        1. People do care, that is clear. While the individual choices are important, the coucil and government making structural changes to facilitate more people being able to live lower emission lives is desperately needed. The coucil should be leading, instead they are playing aspirational games.

        2. People believe in climate change as long as it can be solved by someone else with some magic thinking like biofuels in airplanes or electric cars for everyone.

          But as soon as it involves them, like say, buying a smaller car, the support will quickly evaporate.

          Just look at the top selling cars. We’re moving from cars to utes. Imagine being out and about around Sydney during fire season, and insisting that not only are you going to do a barbecue, but also that using a barbecue is for losers and you’re going to use an open fire like a real man. That is how completely ludicrous this is.

          Yet here we are. 2022’s top 3 selling car models so far according to AA are 2 utes and 1 large SUV.

          I don’t think that the commenters on this post are a representative cross-section of our society.

        3. ‘People believe they care about climate change, but most won’t take actions and will be quick to complain when sacrifices are required.’

          This is exactly it. You can poll anyone and 99.999% would say they don’t want the planet to burn up and become unlivable, so of course most people care about the climate. Convert that into policies and explain how it effects them and suddenly they don’t tie the two together…covert that into life decisions like eating less meat and driving less and suddenly they’ve forgotten about the Climate. AT know this, Council know this and the Government certainly know this..which is why we haven’t heard climate change being called our generations ‘Nuclear free moment’ for 5 years.

        4. It is like the curse of Cassandra. You know what is going to happen (scientists already knew climate change is a thing when I was born), but nobody believes you so you can only watch helplessly as it happens.

        5. I think you’re close, Roeland, but there is a bellcurve of variation here.

          Most people want climate action. Plenty will adjust their behaviour if they don’t see they’re missing out on stuff; they want it to be the rule, so that things are fair. That’s why polls show so many people want government to take action.

          The benefits of systems change aren’t lost on people. It’s just that they don’t want to become the one in the hairshirt; they want their peers and neighbours and family to be experiencing the same benefits and restrictions as they are.

        6. That is exactly it. I have once seen it expressed like this: this great oil burning party we are having will soon be over. But nobody wants to be the first to leave.

          We will see. Maybe it is like a smoking ban in pubs in 1973, i.e. a generation too early.

        7. There are politicians who say they are deeply concerned about climate change, but then go on to clock up the highest amount of international air travel of parliamentarians.

        8. Vance, you mean the Ministers who have to travel internationally to negotiate climate agreements? Of course they should sail there..

      2. Ipsos (May 2022) found the top five issues were:
        inflation/cost of living, housing/price of housing, healthcare/hospitals, petrol prices/fuel, and crime/law and order. Climate change was at number eight.

        1. I would suggest many of those issues are related to climate change. If we have good walking, riding and PT options the price of fuel, our health and housing ( building sustainable well located dwellings) is less of an issue. Obviously people say the issue that hits them in the pocket today is their main issue but showing we have a plan ( ha ha) that has better long term results is important.

  5. So the climate change consultation was aspirational/token eh?

    So we can assume mayors targeted rate will also be right? Phil Goffs“world war 2” level contributions to his grandchildren future, just if it is easy tho.

    1. Caitlin I agree. I go one step further, we should write to C40 to throw Auckland out. It is just a huge embarrassment – peak emissions by 2020 – haha.

  6. it will be interesting to see what happens from here. Does AC feel emboldened to ignore the climate change plans as and when it sees fit? Or does this put the frighteners up them and so they make a major change in tack and deliver on those plans going forward?

    I guess the local govt elections might largely dictate that.

  7. I can’t be bothered to follow the logic behind this. Surely there must be easier ways to organise ourselves. So let’s begin by re appointing councillors to the AT board. If other councillors don’t like what they are doing then a vote among councillors can be held and they can be replaced. A bit more democracy and a bit less waffly plans.

  8. Plans are intentions, developed and written to provide a direction of travel. They overlap and contradict on a regular basis, sometimes making it difficult for those working within and trying to interpret the plans to achieve the things that know they should be doing. This is why a number of people thing regulatory reform is important.

    It is often lamented that AT as an organisation is not being as bold as many readers of this blog would like and that AC do not have the appropriate tools to direct them as they would wish.

    There is a tension between the will of politicians (AC) and the pragmatism of delivery (AT) which is out of balance when you consider the inertia that has developed within AT, creating a road throughput first bias.

    Given the legal underpinnings of how these relationships have been formed the outcome of this case is both unsurprising and points to a requirement to redress the balance of power in the relationship.

  9. I feel like I am missing something. According to the CCO review (pg 56), Council can instruct AT under section 92 of the LGA to act consistently with a plan. So Council could require AT to act consistently with Te Taruke but they haven’t? I wonder whether they will require AT to act consistently with the TERP, or whether this will be a non binding plan too?

    1. I don’t think I recall AC ever instructing AT on something of any significance. Except perhaps when they wanted to take away car parks on arterials and Phil Goff basically said ratepayers where entitled to “their” spaces.

    2. The structure of Auckland Council and its CCO’s seems to create friction. Council has fewer automatic powers, and given AT’s nondelivery, they need to use s 92 or whatever other legal measures they can to bring AT into line.

      What I am struggling to understand is this: it seems to be the same lawyers representing both Council AND AT in this court case, yet their positions should be completely different.

      Isn’t that a conflict of interest on the part of the lawyers? If Council usually has a cosy legal relationship with AT, then it explains why s 92 and other legal measures aren’t being used against AT.

      Anyone know if that’s what the problem is?

      1. The AC and AT lawyers are representing the senior management of both organisations, not the elected officials necessarily.
        AC and AT senior strategic managers are aligned on these things. The plans that don’t align with this strategy are indulged, they will allow the advocates for change (internal staff and Cllrs) to make a big song and dance about it but they are never translated into any actual binding plans, they are indulged because they know that they have no teeth.

  10. I’m pleased that the RLTP is confirmed to be purely under Auckland Transport’s direct control rather than being subject to the whims of Councilors. BUT (and it’s a major one) it is extremely disappointing that Auckland Transport does not live up to the potential it has and was specifically designed to have. That is to be very independent of direct control by elected politicians and to therefore be free to actually do the right things to improve transport irrespective of selfish opposition by the majority voters.

    The whole point of making AT a legally separate body with an appointed board was that it was meant to have appointed to that board experts in transport and other relevant fields who would be free from the need to not piss off voters. This was meant to make it possible for them to push through useful but unpopular things like bus and cycle lanes that strip out parking or a host of other things that it is always worried politicians would be scared to do because voters tend to be selfish.

    We have never got a Board that was bold in the ways the system was meant to allow for. This RLTP would have been a perfect chance for a bold board to say right there is a climate change crisis and this is how we are going to force change to meet it.
    Very disappointing opportunity lost.

    1. Yes. And actually, that’s where the source of many of these problems are: the board appointments and governments processes.

      I’m really not sure about this push to put councillors back on the board as voting members. Mind you, there’s no push at all to fix the board appointments process; not even, it seems, an acknowledgement of how poor it is. So in the interim, having councillors there might be an improvement over what we have. Be far better to aim for the solid, long term solution, but no one seems to be advocating for that. Too challenging to the class system (that we try to pretend we don’t have).

  11. Yes. Europe will burn more coal, the USA can’t stop the states burning coal, India doesn’t care about climate change, Russia seems to support climate change and China isn’t going to reduce emissions any time soon. We may as well spend our money dealing with the consequences rather than waste it subsidising the upper middle class into their next new electric car.

    1. Miffy, envy is the most soul destroying of the seven deadly sin and concern trolling glaringly obvious. I’d far prefer that you stick to you generally great line in humour than try to inform.

        1. Tony, he is not right. To read a move balanced (& fact based view) search for The Gregor Letter. You might even want to subscribe.

        1. That’s a massive carbon spend right there. So is every motorway or CRL or tunnel or apartment block or indeed every renewable energy project. Every crop in the ground every useless gadget (and useful gadget) every part of the economy has climate change baked into it.
          It’s (one of) the inevitable side effects of the system.

    2. Funny how when it comes to things like climate change we shouldn’t do anything because others won’t. But when it is human rights etc instead of calling other countries out we should just do the right thing ourselves and others will see the light and follow our example

    3. Some states in the US won’t stop burning coal and then progressive states like California are doing the simple things that we should be doing like banning anything other than electric power tools. Of course our electric tools will be charged using Genesis dirty energy. “With you, for you.” Only in some ad writers wildest imagination.

  12. In situations where lines of authority & responsibility seem opaque or misrepresented it is easiest to follow the money to see what’s actually happening. I haven’t the data or expertise to do it but I suggest that if all of AT’s spend were placed into one of two columns of adding or abetting climate change, the climate abetting column would be orders of magnitude greater than the other. That then is their expressed (and actual) policy and makes all the others, as Miffy says, “words on paper”.

    1. Sorry, the climate change AIDING spend would be orders of magnitude larger than the climate change ABETTING spend.

  13. Thanks Heidi – I think you have nailed it here.

    “The legal advisors should have offered legal advice about how to use the law and legal environment to achieve the Council plans, not advice about how to weasel out of failing to fulfil their commitments to the public”

    Where is the commitment to the plan. It makes it seem as though the councillors have no concept of upholding their responsibilities as elected officials. Why didn’t they challenge the legal advice on behalf of their commitment to tackling climate change.

    I know lawyers are generally known to be unscrupulous in “chasing the fees” but I for one wouldn’t feel any joy in getting this result in court. Maybe one day the legal fraternity will catch up on the ethical state of the planet and refuse to take on cases like these (forever hopeful!)

  14. and yet the council proposed a had adopted (?) “a Climate Action Targeted Rate (CATR) to do more, particularly in the transport sector given that 43.4 per cent of Auckland’s regional emissions are from transport”. WTAF!

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