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Three bad choices: why cycleways were withdrawn

by Dr Jenny Condie
Many people were left wondering what on earth had happened when the Covid-19 Innovating Streets paper was withdrawn from the Wellington City Council’s agenda last Tuesday morning. The majority of submitters had supported all the proposals. We had the votes for most, possibly all, of the five pop-up projects. Why had we decided to snatch defeat from the jaws of victory?

As one of four councillors in the virtual room where that decision was made, I want to walk you through how I came to agree to withdraw the paper. I can’t speak for the other councillors in that discussion – we may have reached the same conclusion for different reasons. This is not intended as a complete account of what happened – it is simply my version of events.

The tl;dr version of the story is that we got caught out by the specific details of what Alert Level One would mean in practice, which the Prime Minister announced on Monday afternoon. Like many of you, we were expecting the announcement to move us quickly to Alert Level One. What we did not expect was that the detailed guidance for Alert Level One would be changed to no longer require social distancing.

There are still other reasons why these wider footpaths and pop-up cycleways would help us respond to Covid-19 until a vaccine is available. Overseas, people have been reluctant to return to public transport as lockdown restriction are lifted – pop-up cycleways would give people who were nervous about taking the bus another option for getting into the city. Other countries have also moved back to higher Alert Levels as second and third wave cases were found – having wider footpaths and pop-up cycleways in place in case we move back to higher Alert Levels would be useful. However, there is no doubt that the strongest reason for these proposed changes to our streets was to support government requirements for social distancing, which no longer applied.

Arguably we could have pushed on with these projects despite this change, except that the consultation documents sent out to affected parties specifically said the projects were to support “social distancing” in response to Covid-19. This called into question the validity of that consultation. If the documents had just said “in response to Covid-19” we might have been on safer ground. When staff had written those documents how could they have known those two words would end up causing such difficulty? Earlier versions of Alert Level One had included social distancing requirements.

Before I outline my legal concerns around this, I want to stop and talk about restrictions on disclosing legal advice. All legal advice provided to the WCC is subject to legal privilege, which means it is super confidential – it would be withheld from any LGOIMA request. The only person who can waive legal privilege is our head lawyer. Legal privilege has not been waived for this advice, which means I’m not going to tell you what legal advice we received.

Instead I’m going to split hairs very finely and tell you how my judgement was changed as a result of that legal advice. This is a pretty nuanced distinction, but it is how I have decided to reconcile my obligation to protect legal privilege with my desire to be as transparent as possible with the public.

There are two parts to how I weighed up the legal risk – how likely is it that someone will legally challenge this decision, and how likely is it that they would succeed in overturning that decision. I knew from reading the public submissions that at least one person had threatened legal action if these pop-up cycleways went ahead. We know that recently the Island Bay Residents’ Association brought legal action against us despite their case having a very low chance of success. (WCC’s decision was upheld.) My view was that legal action against these projects was more likely than not if we went ahead.

Based on the legal advice we received, I judged that the chances the WCC might lose a judicial review were higher than I was willing to accept. As we saw with the Island Bay cycleway, even poorly founded legal action can create havoc, not just for the project subject to judicial review, but for all other cycleway projects across the city.

Therefore, on Tuesday morning I was weighing up three possible options:

1. Vote for the projects and face legal action if it happened

2. Vote against the projects and try to amend the paper to salvage some of the projects

3. Withdraw the paper and work with staff to salvage some of the projects

In my view, Option 1 was not feasible. Personally, I was no longer prepared to vote for the projects. I believed enough councillors would be concerned about legal action that we would not actually win the vote. That would be the political equivalent of an own goal.

If we went with Option Two we would have faced a public and messy defeat, with only a minor win salvaging some projects to show for it. Effectively amending the paper would have been challenging on such short notice. There was a chance the amendments would be unsuccessful, potentially leaving the projects with no future. We would also create a lot of angst and waste a lot of people’s time on the public submission process.

I preferred Option Three as the least bad of three bad choices. Withdrawing the paper would take the heat out of the public debate. It would also create some space to work with staff and NZTA to find a way forward for these projects. Those efforts might still have failed, but if that happened at least they would have the political advantage of failing quietly.

The chief executive and all four councillors in the room unanimously agreed on Tuesday morning to withdraw the paper. I will be the first to say that the process leading to that decision was messy and lacked transparency. That said, the situation was moving very quickly. In the end, although the process was lacking, I’m satisfied the outcome is the best we could have hoped for.

A media release on Thursday morning announced that staff have been able to identify a way forward for all of the projects that were withdrawn. In August*, officers will bring a paper back to the council table which will update us on the cycleway programme as a whole and ask for some direction from councillors about which projects should be prioritised within the staff capacity we have available. If you had told me on Tuesday morning when I was making this decision, that it would turn out like this I would have been relieved, grateful and pretty pleased.

I look forward to hearing from the cycling community in the lead up to the paper in August about which projects you want to see prioritised in the immediate future.

*August may seem like we are not moving very fast, but this really is the first opportunity we will have to consider a paper. The rest of June is full, with most of the focus on finalising the annual plan and striking the rate increase. There are no committee meetings in July – this is one of only two months during the year where councillors are able to take leave with their families. Staff also need a well-deserved rest after the pressures of implementing Wellington’s Covid-19 response, and a chance to catch up on work that was pushed back as a result.

Dr Jenny Condie is a Wellington City Councillor for the Northern Ward.

12 comments:

  1. Michael Gibson, 15. June 2020, 8:21

    I congratulate Cr Condie on her engaging with Wellingtonians on this. But why wasn’t any Public Notice given to notify us about the meeting when you were “one of four councillors in the virtual room where that decision was made”?

     
  2. Andrew, 15. June 2020, 10:38

    The simple fact is that the WCC failed to protect its citizens during Levels 4 and 3.
    During a time when unknown community transmission within Wellington was highly likely, there was no action from the council to protect pedestrians by setting up temporary wider footpaths.
    I point specifically to the section of Oriental Parade which is currently undergoing widening. This portion of footpath should have been temporarily widened immediately. This is just the type of thing the government’s funding was for. At that time there was virtually no traffic but many local residents trying to keep appropriate distance. In fact the entire Oriental Parade area was particularly busy with pedestrians – a simple coning off of the parking spaces would have alleviated angst in that area also.
    This was not a situation which called for extensive consultation and procrastination, it was a situation which called for prompt actions from the council and the council failed us all in that respect.

     
  3. Chris Calvi-Freeman, 15. June 2020, 10:56

    I also congratulate Cr Condie on her engagement here. But there was a fourth option – to take the paper to the Committee (all councillors) and publicly disclose the potential risks of proceeding with the schemes (without necessarily breaking the legal privilege relating to the advice you received) and therefore recommending that the schemes be postponed BUT also making it clear that there was a strong intention to proceed with all of them sooner rather than later, as soon as and provided the consultation issues could be revisited or reanalyzed appropriately. Instead, we saw a backtracking on the council’s intention to build the schemes, followed a day or two later by a backtracking on the backtracking. If clarity had been provided at Thursday’s meeting, then your subsequent explanations and justifications wouldn’t have been necessary.

    Personally, I have faith that whatever virtue-signalling that might have been undertaken by one or two councillors would not have resulted in an unintended or legally-risky decision to immediately proceed against officers’ and portfolio-leaders’ advice.

    So, two lessons: 1. wherever possible, major issues and contentious projects are better discussed and decided by all councillors rather than a select few, and in public unless there are overwhelming and documented reasons for confidentiality.
    2. Cycleways will always be contentious, mainly due to loss of parking. Consultation must therefore be rigorous and leave no room for legal challenge whatsoever on the engagement process. I realise hindsight is a wonderful thing in this particular (COVID) situation, but nonetheless I believe my point is valid.

     
  4. Tom, 15. June 2020, 11:39

    Thank you Jenny, but I fear you’re getting comfortable sitting in an ambulance at the bottom of the cliff. The flaw was using the Council’s normal process – get some engineers to choose some routes, try to use the traffic resolution consultation process, vote etc etc. The Government’s intent was to innovate in response to a pandemic. Instead, the WCC got the same old people to do the same old thing which produced the same old result. Unless you change the process, you’ll forever be posting on Scoop to explain why nothing is happening. Again. The Council must engage differently, collaboratively and transparently. Good luck!

     
  5. luke, 15. June 2020, 23:20

    As long as we continue to pander to the car, the city will remain unfriendly for pedestrians and cyclists. Subsidised ratepayer-provided on street parking is not the optimal use of the scarce resource that roads actually are. They are for movement, not storage.

     
  6. Don, 16. June 2020, 12:06

    My understanding is that taking away the parking spaces for the “pop up cycle ways,”would result in an annual revenue loss of $2 million for the WCC. Why is this significant amount of potential revenue loss not being made public or being part of the cycleway discussion?

     
  7. CC, 16. June 2020, 12:49

    Don – we would only have to have the 400 car parks for over 200 years if we used the revenue stream to pay for the Conference Centre – that is if there were no interest or other additional charges. At the same time, a decent public transport system, along with safe walk/cycle/scooter paths, would save the average vehicle owner about $10,000 per year if they ditched the car and used alternative modes. Most large new apartment blocks are being located in the CBD or serviced by transport spines and have minimal, if any parking. The days of city dwellers having to trade lifestyle for those who have suburban refuges are drawing to a close.

     
  8. Elaine Hampton, 16. June 2020, 15:16

    Jenny, I cannot believe four councillors sat in a virtual room to make this decision. It should have been worthy of full council engagement and now we are given this explanation: because someone may sue! Hope some one does, the toxic particulate matter and gases generated by vehicles create mortality and morbidity, (death and disease). Our children deserve better.
    PCGM reported on May 20th that parking fees and enforcement is 20% of the Council’s non-rates revenue of $148m. Are you sure this had nothing to do with the decision?

     
  9. John M, 16. June 2020, 20:59

    Isn’t it ironic, the anti car brigade have banged on for years “get motor cars out of the city … They are polluters, they are dreadful in so many ways, get rid of parks, bang up the parking charges etc etc.” Well, exciting times one and all, it appears your wish has come true! So many cars have gone, but goodness me, so have the people who rode in them. Now what do we hear: “come back”, “please come back”, “the city needs you.” “You’ve got to buy lunch in town, you’ve got to shop in Lambton Quay.” Sorry guys, have you seen the stats, they’re shopping in Porirua, in Petone, and in Hutt City. What a surprise!

     
  10. Vicki Greco, 17. June 2020, 7:55

    Cr Condie, it appears you have been misinformed about the island bay cycleway court case. The community had a very strong case and had they had the money to appeal would have won the appeal after all the chances of getting three cycling fanatical judges would have been slim. The council not knowing the community had run out of funds offered no costs if they didn’t appeal. Something they would not have done if they were confident. Finally no community should have to go to court to fight for democracy especially when the councils own submission process confirmed the communities own findings that over 80% of the community want the road put back. It was safe for all road users.

     
  11. Apteryx, 17. June 2020, 11:26

    Jenny. You say “What we did not expect was that the detailed guidance for Alert Level One would be changed to no longer require social distancing.” But the government’s description of Covid alert levels havs always stated that at level 1 physical distancing would be only “encouraged”, i.e. not required.

     
  12. Richard Keller, 24. June 2020, 17:09

    Luke has it right. Streets are for movement not parking. In any busy area, and growing area, like Greta Point, parking on the street is low priority. Parking can be provided in other ways. By any other name, what we see here is another example of the palpable fear of what we all know it will take to address climate change.

     

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