Basin appeal to seek clarity, certainty in infrastructure planning

25 Sep 2014 08:30am | NZ Transport Agency: Central region

The NZ Transport Agency says its appeal of the Board of Inquiry’s decision to decline its Basin Bridge application is expected to provide greater certainty to guide future transport infrastructure development at the Basin and throughout New Zealand.

Transport Agency acting Chief Executive Dave Brash today confirmed that the Transport Agency has lodged an appeal to the High Court. The appeal addresses a number of significant points of law that need to be considered and clarified in order to provide direction for the future planning of infrastructure, both around the Basin and throughout New Zealand.

“We are appealing the Board’s decision to decline the Basin Bridge on a number of significant errors of law. These are errors which we believe have had a significant impact on the Board’s decision in this case.

“We are also concerned by the flow on effect of these errors, which create uncertainty in the law that could impact on the ability of the Transport Agency and other network and utility operators to deliver vital infrastructure.

“These uncertainties have the potential to create legal precedents that would constrain progress not just on roading projects, but on future public transport, pedestrian and cycling developments, and non-transport infrastructure.

“If we have concerns about the manner in which the Resource Management Act has been applied, then we have a duty to raise this through the correct legal process to ensure that the decision is correct in all respects, and can be used as a guide for future applications.

“The Appeal is a prudent and sensible step because irrespective of the outcome, it will help to establish firm, clear and consistent parameters for the future development of any infrastructure project. The Appeal is also necessary to enable us to work effectively alongside our partners at Greater Wellington and Wellington City Council to create a modern, effective and integrated transport system that provides for all transport choices.

“We need the questions raised in our Appeal to be answered before we can move forward with confidence on
improving Wellington’s transport system, starting at the Basin.

“The Resource Management Act requires the Board to have regard to planning documents such as the District Plan and the Public Transport Spine Study. Given that the Board largely set aside those documents in many of its key findings, an Appeal will seek to establish clarity on the role of these documents, to enable the Agency and its transport partners to proceed with greater certainty on our regionally agreed transport activities.

“In particular, we seek clarity around the heritage, urban design and amenity provisions that apply in the District
Plan but appear to have been discounted by the Board of Inquiry”

Mr Brash noted that wider network benefits of other future projects such as the Mount Victoria Tunnel duplication and the Bus Rapid Transit system were not recognised in the Board’s majority decision, despite the Agency’s partners (Wellington City Council and Greater Wellington) giving evidence to the Board that they were contingent on the Basin Bridge being implemented. Mr Brash says this creates obstacles to city and regional development as it impedes the Agency and its partners from effectively implementing strategic long-term plans that necessarily depend on progressive investment in the transport networks.

“Given that sequentially planned transport projects are often contingent on one another to proceed, it is important for ‘real world’ transport planning that we can capture and recognise the enabling benefits of projects such as the Basin Bridge. Disregarding future projects simply because they are not yet consented creates a
‘chicken and egg’ scenario.”

Mr Brash says the decision also creates potentially insurmountable obstacles in regards to the assessment of alternatives when developing future projects as the Board compared the effects of Project with options that did not deliver the public transport, pedestrian and cycling improvements that are needed, and did not solve congestion sufficiently to allow future development of Mount Victoria Tunnel Duplication.

The Transport Agency notes that the decision was a majority decision rather than a unanimous decision, and the Agency largely concurs with the analysis and rationale provided in the minority decision, which recognises the benefits of the Basin Bridge in enabling contingent projects and recommends that the application be granted.

Mr Brash says the Agency gave extensive consideration to whether an appeal was appropriate.

“We have not made this decision lightly, and we believe that the cost of appealing will be far outweighed by the benefits of having certainty for forward planning on other projects.

Meanwhile, the Transport Agency will continue to work actively with its partners at Wellington City Council and Greater Wellington on how best to progress with plans to improve transport in, through and to the Inner City, and to further develop the wider network case for transport improvements relating to the Basin, the Mount Victoria Tunnel, and the Bus Rapid Transit spine.

Key themes covered in the appeal include:

• That the Board did not adequately have regard to relevant statutory documents such as the District Plan. For example, the Board found that the area from Mt Victoria Tunnel to Taranaki Street was a heritage area, when this is not reflected in the District Plan or any expert assessment. Similarly, the Board found that Kent/Cambridge Terraces form an important viewshaft from the Basin Reserve to the sea (notwithstanding the fact that New World supermarket blocks the view to the sea) and that Kent and Cambridge Terraces form part of a processional route from Parliament to Government House
when neither of these features are identified in the District Plan.

• That the Board failed to recognise and give weight to the fact that the project is essential to the implementation of future projects such as Mt Victoria duplication or Bus Rapid Transit.

• That the Board incorrectly found that the consideration given by the Agency to its assessment of 70+ alternatives was inadequate, and that Board set the standard too high and imposed new legal tests. For example, the Board stated that the NZTA ought to have assessed sub-optimal options, such as the Basin Reserve Roundabout Enhancement Option, even when the Board’s independent transportation experts agreed that this option could not meet the project objectives.

• That as well as not recognising the future enabling benefits of the project, the Board also failed to adequately recognise the bridge’s immediate transportation benefits, such as walking and cycling facilities and bus priority lanes

• That the Board found that the Northern Gateway Building proposed for the Basin Reserve would have adverse effects but did not take into account that the District Plan already permits buildings of up to
10m to be built on the Basin Reserve.

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