Delegations and Decisions - What do council officers need to communicate?

Tuesday 30 July, 2024

A recent Court of Appeal case considered a judicial review launched by the Thorndon Quay Collective Inc (‘TQC’) against Wellington City Council (‘Council’) in respect of Council’s decision-making process to reconfigure parking on Thorndon Quay from mainly angled parking to entirely parallel parking.

The decision-making process

This decision was prompted by a need for interim cyclist safety measures, pending eventual upgrades to Thorndon Quay and Hutt Road. Council officers responsible for road safety issues first met to consider proposed changes, along with alternative solutions.

The Council officers explored several alternative options, but ultimately identified the change to parallel parking as their preferred option. Public consultation on this proposed change followed. TQC submitted a number of alternative solutions to Council’s proposed change.

Council’s Planning and Environment Committee (‘the Committee’) then met to consider the proposed change. Council officers provided a report to the Committee recording their approval for the change. The report notably lacked detail regarding alternative options to the proposed change.

A Council officer attending the Committee meeting was questioned about the alternative options considered by Council officers. He responded by briefly explaining why some (but not all) of the alternative options had been rejected by officers. The Committee ultimately passed the resolution and implemented the parallel parking change recommended by officers.

Was this decision-making process deficient?

TQC contended that Council’s decision-making process failed to comply with Council’s obligation to identify and assess all ‘reasonably practicable’ alternatives in making its decision. Council rejected this, contending that there was no requirement for alternative options that were not ‘reasonably practicable’ to be presented to and considered by the Committee.

The Court found that the Committee, rather than the Council officers, was the lawful delegate of Council for the purposes of decision-making on this proposal. To this end, it was not for Council officers themselves to unilaterally decide which options they considered to be ‘reasonably practicable’. That was a decision for the Committee to make.

That is not to say that council officers have no ability to rule out options. There is a pragmatic allowance for options which are plainly unrealistic to be set aside by officers. One example in this instance was a proposal to close Thorndon Quay entirely. However, if the practicability of an option is arguable, it should be put before the decision maker, regardless of whether the argument is unpersuasive to officers.

To this end, the decision-making process followed in this case was found to be deficient. The Court held that, effectively, only one option was put before the Committee. This meant that the lawful decision-maker, the Committee, did not assess all reasonably practicable alternatives. The oral questioning during the Committee meeting was not found to be substantive enough to fulfil this requirement.

Key Takeaway

This case demonstrates the significant role council officers play in the scheme of local government decision-making. Their ability to rule out options when assessing proposed alternatives is one that, when exercised too liberally, can amount to an unlawful delegation. To this end, officers should be mindful of why they are choosing not to present options to councillors. Where reasonable arguments can be made that a particular proposal is reasonably practicable, that option should be put to the decision-makers, even if the arguments in favour have failed to persuade those officers.