A young east Auckland resident has won a judicial review in the Auckland High Court relating to the construction of several controversial traffic calming measures along a waterfront road.
The judgement of Justice David Johnstone, released on August 18, relates to the Judicial Review Procedure Act court action between Bucklands Beach local Sean O’Loughlin and Auckland Transport (AT) and Auckland Council.
O’Loughlin, 20, is a third-year law student at the University of Auckland and he was self-represented in the case.
The judgement states O’Loughlin was troubled by the installation by AT of a raised pedestrian crossing and three speed humps on The Parade.
“Whether AT was entitled to install the crossing and humps depends … on the formation of its opinion that they ‘would not unduly impede vehicular traffic using the road’.
“Regrettably, when making its decision to install the crossing and humps, AT did not consider whether they would unduly impede vehicular traffic.
“Instead, its decision-making commenced with the assumption that reducing vehicular speeds would likely improve public safety.
“And, having commenced with that assumption, its decision-making turned on whether various proposed traffic-calming measures would reduce vehicular speeds cost-effectively.”
Justice Johnstone said without having addressed itself to the question of whether the crossing and humps would not unduly impede vehicular traffic, AT didn’t form the opinion it was required to form before it became entitled to install them.
“Mr O’Loughlin advanced this judicial review proceeding on the basis that, amongst other things, AT’s installation decision was predetermined, and therefore, implicitly, unlawful.
“To an extent, it can be said that AT’s failure to meet the … statutory decision-making criterion rendered AT’s decision largely inevitable and, in this sense, predetermined.”
O’Loughlin sought to establish via the judicial review that AT’s installation decision was predetermined, and, implicitly, unlawful.
He sought also to establish that a meeting, held on May 22, 2024, and involving council and AT staff, Howick Local Board members, and members of the Bucklands and Eastern Beaches Ratepayers and Residents Association was in breach of a duty of consistency, and therefore unlawful.
O’Loughlin sought declarations from the court that the installation of the raised pedestrian crossing and speed humps was predetermined; that the actions of AT and the Howick Local Board “in consulting with” the ratepayers and residents’ association were procedurally improper, in breach of their duty to act consistently, and unlawful; and “reversing” the installed pedestrian crossing and speed humps.
After weighing up submissions from the parties involved, Justice Johnstone determined AT “must reconsider and determine whether it should have installed the raised pedestrian crossing and speed humps which were installed at Little Bucklands Beach on the southern portion of The Parade during the latter part of 2024”.
“In particular, it must genuinely address whether those measures ‘unduly impede vehicular traffic’… [and] if it forms the opinion the measures unduly impede vehicular traffic to any extent, then to that extent it must remove them.”
O’Loughlin told the Times he undertook the judicial review court proceedings by himself, but with support from his parents relating to compiling evidence, which ran to more than 680 pages.
“They’d started digging up the road in October [to build the speed humps] last year,” he says.
“First we served [court documents on] the construction site and they packed up and left.
“But they were back a couple of days later. Eventually we had proceedings filed and got through all the evidence, filed submissions, and the hearing was on May 6.”
O’Loughlin says the judge agreed with his grounds of review that construction of the speed humps was predetermined.
“I argued the evidence showed they [AT] had already made their minds up before consultation.
“There was a report that showed they had already considered all the alternatives before they’d even done public consultation.”
He says court processes are extremely stressful. But he had been to court before – the Manukau District Court – over a previous parking fine.
“I appeared [in court] about six or seven times for that in person, so I’ve argued stuff there, but this was completely separate.”
O’Loughlin says he was motivated to launch the judicial review because of the process AT carried out in deciding to install the raised crossing and speed humps.
“There’s no issue in building them if, first, you follow proper process, but second, the public actually supports it.
“What showed on the public community feedback report was that these speed humps were the ones the public supported the least.
“They supported changes elsewhere which were not continued, but it was the ones along this road that had the least support that they continued with.”
In September last year the Times reported on the proceedings of a Howick Local Board business meeting at which O’Loughlin’s father Chris O’Loughlin spoke about the safety improvements carried out on The Parade.
That story stated the board was partnering with AT on the work, the first part of which was being carried out in two stages.
It was focused on the stretch of The Parade between Laings Road and Whitcome Road.
A concrete raised pedestrian crossing was to be installed near the intersection with Laings Road.
Three speed humps would be installed along The Parade between Laings Road and Whitcome Road.
The public provided feedback on the initial proposal in 2023.
Board chairperson Damian Light previously said there had been numerous crashes on the road, particularly near the intersection of The Parade and Laings Road, which he described as “quite a blind corner”.
“We know we’ve got issues as there’s no footpath on one side of The Parade so people have to use the other side. We want people to get across safely.
“That’s what the pedestrian crossing is for. The speed bumps are intended to slow vehicles down, so if a pedestrian gets hit they won’t be killed.
“Because 50mk/h will kill you, whereas 30km/h is a survivable speed.”
When Chris O’Loughlin presented to the board he raised concerns relating to the impact the work would have on local residents, the accuracy of related data, whether the board’s public consultation was sufficient, and the placement of the pedestrian crossing.
“In January, 2023, safety proposals for The Parade, Laings Road and Bucklands Beach Road were under consultation,” he said.
“By March, only The Parade, with just 27 per cent support, was approved for work.
“This was despite higher accident rates and higher public support for safety changes on all the other roads.
“The only identified key stakeholder was Fire and Emergency NZ, who advised against speed humps.
“Thankfully, feedback providers were promised future updates and by May, 2024, AT engagement had closed community feedback and invited participants to a public meeting with just seven hours’ notice.
“How is it that that level of notice is deemed as reasonable to interested parties?”
Chris O’Loughlin told the board it needed to “immediately instruct the contractor to stop work”.
“You need to review your entire consultation processes and disclose all of the data.
“You need to be accountable to the majority of the community who did not agree with the safety proposals for The Parade.”
Board chairperson Damian Light asked Chris O’Loughlin about his comments relating to public consultation on the work and how it didn’t have strong community support.
“I’m curious as to what level of support you would expect to see before the board or AT proceeds with a project?”
Chris O’Loughlin said he expected the board would have strong local support for the work via a communication process that’s quite tightly controlled.
“The communication process I thought was pretty loose. It started off with AT engagement.
“People who provided feedback had the option to be included with any further updates on what was going on. That carried on for a smaller amount of time.
“Facebook groups aren’t really the sole way to be communicating these types of arrangements. A lot of people aren’t on Facebook.”
Chris O’Loughlin told the board that to impose three speed humps and a raised pedestrian crossing in a 400-metre stretch of road, “it’s just insanity – it’s unreasonable”.
The board subsequently voted to ask for advice as to whether its duties under the Local Government Act regarding consultation on the matter were met.
The Times sought comment on the court’s ruling this week from AT, Auckland Council and Howick Local Board chairperson Damian Light.
A spokesperson for AT said the agency is “unable to comment further at this time as we are in the process of considering the High Court’s decision”.
