SaveKapiti’s Appeal against the Board of Inquiry decision in favour of the proposed MacKays to Peka Peka Expressway has been heard in the High Court this week.
Unlike NZTA staff that simply travel 100m down the road from their usual office after picking up their flat whites, the process to get to the High court is a bit more complicated for those of us on the other side who live up here on the coast.
For me, getting to the High court by 9am involved getting up mind-numbingly early to dress, feed, wipe down and generally make presentable three young children without leaving the house comparable to a disaster recovery zone.
It also involved calling on several favours in order to get childcare for one child and two others taken to school and a 30-second shower before the 1 hour trip into town.
The gallery was packed to capacity when I arrived. SaveKapiti’s lawyer was presenting the Appeal case which is primarily based on the fact that the New Zealand Transport Agency (NZTA) largely excluded a comparison between their project and the resource-consented Western Link Road (WLR) that was already in our District plan.
The Resource Management Act (RMA) requires the Board to ‘pay particular regard to alternative methods to undertake the same work.’
NZTA’s argument is that the WLR is not the ‘same work’ because the WLR is a local road and not an Expressway, as required by the brief given by the Minister.
Never mind that the WLR was fit for purpose, in our District plan, arrived at after 12 years of genuine community consultation — and we would be driving on it now had it not been for the aforementioned Ministerial interference and re-direction.
Yes, my head had begun to ache too.
The Board had placed considerable emphasis on the ‘positive effects’ of the proposed Expressway.
SaveKapiti’s lawyer described this emphasis as ‘pivotal’ to the Board’s decision. These effects include route security and resilience, road safety effects, cycling, connectivity and economic benefits.
However, without the comparison with the WLR, these positive effects have been unduly over-represented as the WLR would have delivered the same benefits and more.
Interestingly, NZTA did include comparisons with the WLR in their submission when the effects were adverse, for example stating that ‘the WLR would create just as much noise as the proposed Expressway.’
‘Not in the real world’ says NZTA
NZTA’s lawyer said that the WLR was not in the ‘real world’ and that is why NZTA can largely ignore it.
However, a Court decision in 2006 called the ‘Hawthorn Decision’ (NZRMA 424 (CA)) states: “The word ‘environment’ embraces the future state of the environment as it might be modified by…the District Plan.”
SaveKapiti used this argument in its Appeal because the WLR designation is in our District plan and the RMA prohibits anyone doing anything that would prevent or hinder the project without the consent of the requiring authority (in this case, Kapiti Coast District Council).
NZTA’s lawyer referred to the WLR as ‘artificial’ and said that the argument to compare the WLR as the permitted baseline was ‘immaterial’ because it is not mandatory.
In essence, he is saying that the years of planning, research and consultation that goes into getting a project into the District Plan does not matter. It begs the question ‘what’s the point of a District plan’?
NZTA’s lawyer also confusingly argued that the WLR need not be considered because it could not coexist with the Expressway.
He referred to the WLR as the ‘back up’ even though it is the WLR which is solidly in our District Plan and it is the WLR which local minister Nathan Guy was rearing to ‘get the bulldozers started on’ up until 2009, when the proposed Kapiti Expressway was still only a twinkle in the then Transport Minster Steven Joyce’s eye.
Change in amenity values
APSOC also presented an Appeal concerning the change in amenity values that would occur when the proposed Expressway was in place, reducing people’s ability to entertain, grow food and generally use the outdoors as they currently do.
But this mum-of-three had to leave the surreal world of the High Court chambers with its raven-cloaked legal representatives arguing over the value of our District’s defining statutory document.
I had a piano lesson to get to, children to pick up, to feed and wash, and an alien costume to make.
I left feeling grateful that life wasn’t governed by a District Plan. I’m sure the dishes would never get done if they were subject to the whimsical changes of politics or the Government.
The High court judge said a decision would be made ‘reasonably soon.’