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.
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.