Many people were left wondering what on earth had just happened when the Covid-19 Innovating Streets paper was withdrawn from the agenda on Tuesday morning earlier this week. 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 already 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 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 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 WCC might lose a judicial review were higher than I was willing to accept. As we saw with 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 possibile 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 actually 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 to withdraw the paper on Tuesday morning. 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 first opportunity we will have to consider a paper. The rest of June is already 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.