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Movement v. Waka Kotahi - decision

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Movement v. Waka Kotahi - judgment

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Movement is a charitable trust which advocates for safe, accessible and sustainable transport. Waka Kotahi | New Zealand Transport Agency (Waka Kotahi) is New Zealand’s national transport agency. Movement sought judicial review of the decision by Waka Kotahi to approve the National Land Transport Programme 2021-2024 (NLTP21). The NTLP21 is governed by the Land Transport Management Act 2003 (LTMA). 

In the High Court, Movement argued that Waka Kotahi had failed to assess and consider various matters relating to greenhouse gas (GHG) emissions, with the consequence being that its decision to approve the NLTP was unlawful. Specifically, Movement argued that in preparing and adopting the NLTP21, Waka Kotahi failed to meet the requirements under the LTMA to ensure that the NLTP (1) contributes to the purpose of the LTMA; and (2) “gives effect” to the Government Policy Statement on Land Transport 2021 (GPS21) which includes climate change as a strategic priority. Movement also said that in preparing and approving the NLTP21 Waka Kotahi failed to properly assess, and therefore ensure, that the investments proposed in the NLTP21 would achieve the required reduction in carbon emissions. 

On March 1 2023, the High Court released its decision, dismissing the application for judicial review. This was largely on the basis that Grice J found that the purpose of the LTMA did not include emissions reduction, and further, that Waka Kotahi had prepared the NLTP21 with appropriate reference to the climate change priority in the GPS21. The Court found that while “climate change is an important issue for the land transport sector and Movement represents members of the public who are concerned that not enough is being done to address climate change…[however] the Court’s role in this judicial review is limited to ensuring that Waka Kotahi has exercised its decision making in the preparation and approval of the NLTP to ensure that it contributes to the purposes of the LTMA and gives effect to the GPS on land transport” ([262] - [263]). The Court held that climate change considerations were not a specified purpose of the LTMA, and while the GPS21 includes climate change as a strategic priority, it also includes safety, better travel options and improving freight connections for economic development, with no strategic priority taking primacy ([264]). Grice J held that the NLTP activities were assessed as contributing to the short- to medium-term results of reducing transport sector GHG emissions, and the qualitative assessments undertaken by Waka Kotahi met its requirements under the LTMA and GPS21. Waka Kotahi was not required under either the LTMA or GPS21 to undertake a quantitative measurement of land transport GHG emissions ([265] - [266]). 

Waka Kotahi sought costs against Movement, and on 17 April 2023 costs were granted against Movement. In considering whether the case was brought in the public interest, and as such costs should be reduced or refused (High Court Rules, Rule 14.7(e)), the High Court noted the decision in Lawyers for Climate Action NZ v Climate Change Commission, where Mallon J had warned that while climate change will be an important factor for this assessment, not every case involving climate change will justify a reduction in costs where the applicant is unsuccessful ([48]). In this case, Grice J found that the balance in this case favours the granting of costs, in particular because the relevant legal framework had already been considered by the Court, as had the interpretation of the GPS21 albeit in a different context ([49]).  

On 31 March 2025 the Court of Appeal released its decision. In particular, a new Government Policy Statement took effect from 1 July 2024 (GPS24), which does not make transport emissions reduction a strategic priority, and contains no direction or guidance to Waka Kotahi in relation to achieving reductions ([70]). Due to this change in the factual matrix, the Court found that the majority of the appeal had been rendered moot. In terms of the substantive appeal, Movement argued that mitigating climate change is encompassed within the LTMA’s s 3 purpose of contributing to a “safe land transport system in the public interest” and by dint of s 67 of the LTMA, the Minister must be satisfied any GPS “contributes” to that purpose when preparing or reviewing it (including the GPS21) ([78] - [79]). The Court of Appeal held that s 3, and the “public interest” aspect meant that it did not agree that climate change considerations are irrelevant in giving effect to the purpose statement. Instead, the Crown’s allocation of land transport funding may reflect its desire to achieve an effective, efficient and safe transport system in the public interest that includes (as required by the GPS21 and NLTP21) taking account of the Government’s climate change objectives and commitments - but the s 3 purpose does not of itself require that outcome ([92]). Ultimately, the Court either as a matter of mootness or substance (or both) found against Movement on all agreed issues, with no material error in the decision under appeal being identified ([109]). 

Movement v. Waka Kotahi

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Movement v. Waka Kotahi - decision

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance