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New Zealand Journal of Environmental Law |
Last Updated: 30 January 2023
319
The Government Policy Statement on Land Transport Funding
and Ecological Sustainability
Julia Harker, Prue Taylor and Stephen KnightLenihan*
The Land Transport Management Act 2003 aimed to shift land transport strategic planning and funding from a narrow road development focus to providing for “an affordable, integrated, safe, responsive and sustainable land transport system”. This article considers whether the Government Policy Statements (GPS) produced by successive governments since 2008 are in fact contributing to the land transport objective of environmental sustainability, as well as exploring whether the most recent GPS are susceptible to judicial review for failure to consider environmental sustainability as a mandatory relevant consideration. The article concludes that whether or not such an action could be brought, the current government has failed to provide for environmental sustainability in its GPS in any meaningful way, and posits a number of statutory amendments which could support ecologically sustainable outcomes in the land transport sector.
1. INTRODUCTION
The Government Policy Statement on Land Transport Funding (GPS) was introduced under the Land Transport Management Amendment Act 2008 (LTMAA) as a method of providing national strategic direction and cohesion to land transport funding. However, the three GPS produced since this enactment
*Julia Harker, LLB (Hons), BA, LLM (Hons), Barrister (juliaharker@axys.co.nz), Prue Taylor, LLB, LLM (Hons), LLM (Envtl & Energy), Senior Lecturer, School of Architecture and Planning, University of Auckland (prue.taylor@auckland.ac.nz); Stephen KnightLenihan, MSc (Hons), PhD, Associate Head of Planning Programmes, School of Architecture and Planning, University of Auckland (s.knightlenihan@auckland.ac.nz).
have been markedly different in emphasis; the first focusing on modal shift and reductions in greenhouse gas emissions, with the later documents promoting economic efficiency and development of the state highway network. This raises the issue of whether the more recent GPS comply with the statutory criteria and overarching sustainability purpose of the Land Transport Management Act 2003 (LTMA).
This article will provide an overview of relevant LTMA provisions, before reviewing the GPS prepared since 2008 in light of the statutory criteria. Following this, the article will analyse whether an action in judicial review could be successfully brought against the Minister of Transport and on what grounds. The article will then attempt to define “environmental sustainability”, one of the core transport objectives of the LTMA, before assessing the extent to which the GPS 2009 and 2012 achieve this objective. Finally, potential amendments to the LTMA will be proposed.
2. LAND TRANSPORT MANAGEMENT ACT 2003
The LTMA replaced the Transit New Zealand Act 1989 as the core piece of legislation for the planning and allocation of funding for the land transport system. While the former Act had narrowly focused on the funding of roads, the LTMA was to provide for an integrated transport system. In line with this broader focus, the purpose of the LTMA is to “contribute to the aim of achieving an affordable, integrated, safe, responsive and sustainable land transport system”.1
The LTMA also incorporates the following five transport objectives con- tained in both the New Zealand Transport Strategy (NZTS) 2002 and 2008:2
(a) assisting economic development;
(b) assisting safety and personal security;
(c) improving access and mobility;
(d) protecting and promoting public health; and
(e) ensuring environmental sustainability.
These factors are referred to throughout the LTMA and form essential criteria to be considered when preparing strategic documents such as the national land transport strategy, government policy statement, regional land transport programmes and regional land transport strategies.
The LTMA also provides for a greater degree of longterm planning for land transport funding, with a number of planning and funding documents provided for at a national and regional level. These include the GPS, which is arguably the government’s strongest tool for influencing land transport policy and funding.
2.1 Government Policy Statement
The Labour Government introduced the requirement for a GPS in the Land Transport Management Amendment Act 2008 as a means of setting out the government’s planned investment and funding priorities to give more strategic guidance to the transport sector.3 This was largely in response to concerns identified in the Next Steps Review, which identified a need to provide greater national direction for land transport funding.4
The GPS is issued every three years and sets out the short to mediumterm impacts and objectives that the Crown wishes to achieve through the allocation of funding, the land transport activity classes that may receive funding from land transport revenue, and the range of funding to be applied to each activity class.5 The GPS was intended to provide both a defined purpose for the land transport fund and a programme of specific impacts and objectives, as well as constraining allocations and capital expenditure within stated boundaries.6 While the GPS was meant to set out funding policy and priorities, individual land transport funding decisions were to be kept at arm’s length from govern ment.7
The Minister of Transport is responsible for the preparation of the GPS and must do so in compliance with s 87 LTMA:
87 Preparation of GPS
(1) The Minister must, in preparing the GPS,—
(a) be satisfied that the GPS—(i) contributes to the aim of achieving an affordable, integrated, safe, responsive, and sustainable land transport system; and(ii) contributes to each of the following:
- (A) assisting economic development:
- (B) assisting safety and personal security:
(iii) is consistent with any—
- (A) national land transport strategy:
- (B) national energy efficiency and conservation strategy; and
(b) take into account any relevant national policy statement that is in force under the Resource Management Act 1991; and
(c) have regard to the views of Local Government New Zealand and representative groups of land transport users and providers (including representative groups of coastal shipping users and providers) ... .
The GPS guides the New Zealand Transport Agency (NZTA) and land transport sector on the outcomes and objectives and the short to medium term impacts that the Crown wishes to achieve through the National Land Transport Programme (NLTP) and allocation of the National Land Transport Fund (NLTF).8
The GPS must include (in summary):9
(a) short to mediumterm impacts the government wishes to achieve;
(b) activity classes to be funded and funding ranges for each activity class;
(c) expenditure target for the NLTF and allowable reasons for varying this;
(d) maximum and minimum expenditure for the NLTP; and
(e) statement of the Minister’s expectations of how the Agency gives effect to the GPS.
The NZTA is required to give effect to the GPS when performing its land transport planning and funding functions. However, the GPS may not impose a specific obligation on the NZTA to approve or decline funding for a particular activity.10
In addition, local government decisionmakers must take the GPS into account when preparing a regional land transport strategy and regional land transport programmes must be consistent with the GPS.11
3. OVERVIEW OF GOVERNMENT POLICY STATEMENTS
This section will discuss the three GPS prepared under the LTMA to date and examine the extent to which they comply with the criteria under s 87 LTMA.
3.1 GPS 2009/10 – 2018/19 (August 2008)
The first GPS was produced in August 2008 (GPS 2008). The GPS was intended to reflect the long-term transport goals set out by the Labour Government in NZTS 2008, which in turn was informed by the New Zealand Energy Strategy and New Zealand Energy Efficiency and Conservation Strategy.12 The NZTS provided for the following vision for transport to 2040: “People and freight in New Zealand have access to an affordable, integrated, safe, responsive and sustainable transport system.”13 This vision statement was included in the earlier NZTS 2002 and was incorporated in the s 3 LTMA purpose.
The vision is supported by the five transport objectives set out above, which are also incorporated throughout the LTMA and form the core criteria to be addressed when preparing the GPS under s 87.
The GPS 2008’s short- to medium-term targets clearly reflect the long-term objectives and transport objectives of the NZTS and include targets in areas such as reducing greenhouse gas emissions, public transport use, and walking and cycling.14
Specific targets contained in the GPS 2008 include reducing kilometres travelled by single occupancy vehicles by 10 per cent per capita and increasing public transport patronage by 3 per cent per year for each year to 2015, as well as 1 per cent growth in mode share for walking and cycling per year.15
3.1.1 Compliance with LTMA
While not addressing each of the s 87 criteria specifically, the GPS 2008 discusses the five transport objectives which form the core requirements of the provision. In addition, the development of a more sustainable transport system is a stated priority in the GPS and the targets promoted under the GPS 2008 are framed around the five transport objectives. In particular, the requirement to contribute to environmental sustainability is evident in the GPS’s targets which seek to promote a modal shift towards sustainable forms of transport, as well as reducing greenhouse gas emissions.
14 At 10.
15 At 14.
3.2 GPS 2009/10 – 2018/19 (May 2009)
The GPS 2009/10 – 2018/19 (GPS 2009) was prepared after the 2008 elections and reflected the National Government’s priorities for land transport. The GPS 2009 came into force on 1 July 2009 and was amended in November 2010.
The GPS 2009 marked a dramatic change in the government’s priorities in land transport funding from the GPS 2008. The main focus of the GPS 2009 is on increasing economic productivity and growth in New Zealand and the role transport can play in achieving this objective. The GPS is highly influenced by the poor economic climate at the time it was prepared and sets out targeted investment in land transport to provide employment and money for communities; with funding under the GPS 2009 being allocated in the most “economically efficient” way possible.16
In contrast to the GPS 2008, which encouraged modal shift from solo occupant vehicles to public transport, cycling and walking, the GPS 2009 supports the current modal focus on roading, with only some modal shift supported in major cities. This was due to concerns by government that the GPS 2008 targets would have a negative impact on “environmental and economic efficiency”.17
Investment in new state highway infrastructure is a core component of the GPS 2009 and is aimed at encouraging economic growth and productivity. The centrality of state highway infrastructure is reflected in the fact that 33–34 per cent of the NLTF is allocated to this activity class. To provide a focus for such investment, the GPS identifies seven initial Roads of National Significance (RONS) and states that these are to be “taken fully into account when the NZTA develops the National Land Transport Programme”.18
Public transport services are also identified as being important to economic growth and productivity.19 However, the GPS 2009 signals that in future public transport infrastructure is to be largely funded outside of the NLTF in line with the principle of hypothecation, whereby revenues generated by road users are used for their benefit.20
The specific short to mediumterm impacts identified include impacts that contribute to economic growth and productivity such as: improvements in journey time reliability; easing of severe congestion; better use of existing transport capacity; and better access to markets, employment and areas that contribute to economic growth.
16 Ministry of Transport Government Policy Statement 2009/10 – 2018/19 (Ministry of Transport, Wellington, May 2009) [GPS 2009] at 1.
17 At 11.
“Other impacts” identified in the GPS 2009 include more transport choices, reductions in adverse environmental effects from land transport, and contri butions to positive health outcomes. Notably no concrete targets are given for achieving any of the impacts identified.
The GPS 2009 also provides that three main concepts — effectiveness, economic efficiency, and economy — are to guide the NZTA, local government and the transport sector when planning, assessing, and implementing strategies and activities.21
3.2.1 Compliance with LTMA
The GPS 2009 does identify the LTMA purpose and criteria for the GPS including “ensuring environmental sustainability”.22 However, this is seen as an ancillary goal to economic growth and productivity and is couched in the following terms: “In pursuing economic growth and productivity, the Govern ment also expects to see progress on other objectives.”23 The movement away from funding of public transport infrastructure through the NLTF also means that there is less transparent and accessible funding for such infrastructure available to local government and is arguably contrary to the LTMA aim of achieving an integrated land transport system.
While the GPS 2009 does make reference to “reductions in adverse environ mental effects of land transport” as an “other impact”, it does not provide any policies which contribute to achieving this impact. In addition, the GPS does not contain any consideration of sustainability objectives and does not set targets which directly contribute to ensuring environmental sustainability.
However, the appendices of a report prepared by the Ministry of Transport (MOT) for the Minister of Transport dated 24 April 2009 do contain an analysis of whether the GPS 2009 complied with the s 87 criteria. This paper was acquired as a result of a request for information under the Official Information Act 1982 and is not normally publicly available. With regard to the “contributes to ensuring environmental sustainability” criterion it provides:24
The government wishes to achieve a range of impacts that will contribute to environmental sustainability. These include better use of existing transport capacity, more transport choices, reductions in emissions and adverse environ mental effects. Allocation to activities such as public transport infrastructure and services, walking and cycling, demand management and community
21 At 15.
22 At 10 and 22.
23 At 10.
24 Ministry of Transport “Draft Amendment to Government Policy Statement on Land Transport Funding 2009/10 – 2018/19”, 24 April 2009.
programmes will assist in achieving these impacts and will contribute to environmental sustainability.
The assessment of whether the GPS 2009 meets the criterion is perfunctory at best. While the assessment identifies allocations to activities that may contribute to environmental sustainability, given the limited funding allocations in practice and the lack of stated environmental sustainability targets in the GPS itself, such analysis seems superficial and “retrofitted”. Whether this analysis is sufficient for the purposes of meeting the criteria under s 87 will be analysed further in part 4 of this article.
Furthermore, the explicit provision for RONS in the GPS and statements about their funding arguably amounts to imposing an obligation on the NZTA to approve funding for a particular activity, which is prohibited under s 89(2) LTMA. Overall, the way in which the GPS is framed is contrary to the “arm’s length approach” supported by the LTMA and limits the range of funding and strategic approaches to transport open to local authorities.
3.3 Government Policy Statement 2012/13 – 2021/22 (July 2011)
The Government Policy Statement 2012/13 – 2021/22 (GPS 2012) largely continues the strategic funding direction established in the GPS 2009, with its emphasis on economic growth and productivity. The Cabinet and briefing papers prepared prior to the publication of the GPS 2012 give an important insight into the government’s land transport objectives.
The Cabinet paper prepared in April 2011 provides for a continued focus on “reorienting” land transport investment into projects and services that support economic growth, including an ongoing RONS programme.25
A briefing paper subsequently prepared by the MOT for the Minister of Transport dated 10 June 2011 considered whether the GPS 2012 met the criteria set out in s 87 LTMA. This paper was acquired as a result of a request for information under the Official Information Act 1982 and is not otherwise publicly available. The following comments were made in relation to the “ensuring environmental sustainability” criterion:26
This criterion is satisfied by GPS 2012 but to a lesser extent than for the other outcomes specified in Section 87. An impact that the government wishes to achieve through the use of the NLTF is to reduce adverse environmental effects from land transport.
This is supported by other outcomes and priorities stated in GPS 2012 such as making better use of existing transport capacity, more transport choices and giving effect to the New Zealand Energy Strategy.
Allocations to activities such as public transport infrastructure and services, walking and cycling will contribute to environmental sustainability.
As with the briefing paper for GPS 2009 the assessment of whether the GPS 2012 meets the criterion is superficial and notably even admits that environ- mental sustainability is satisfied to a lesser extent than other criteria. Whether this is sufficient to satisfy the criteria set out in s 87 will be assessed in part 4 of this article.
3.3.2 GPS 2012
The GPS 2012 was released in July 2011 and came into force on 1 July 2012. This was intended to give local authorities time to take the government’s priorities into account in their regional transport planning.27
Similar to the GPS 2009, the key priorities for the GPS 2012 are economic growth and productivity, largely to be achieved by further development of the state highway network. The GPS provides that the overarching goal for transport is “an effective, efficient, safe, secure, accessible and resilient transport system that supports the growth of our country’s economy in order to deliver greater prosperity, security and opportunities for all New Zealanders”.28 As proposed, the GPS provides for three focus areas: economic growth and productivity, value for money, and road safety. The short to mediumterm
impacts identified by the GPS include:
(i) Improvements in the provision of infrastructure and services that enhance transport efficiency and lower the cost of transportation.
(ii) Better access to markets, employment and areas that contribute to economic growth.
(iii) Reductions in deaths and serious injuries as a result of road crashes.
(iv) More transport choices, particularly for those with limited access to a car.
(v) A secure and resilient transport network.(vi) Reductions in adverse environmental effects from land transport.
(vii) Contributions to positive health outcomes.
In terms of funding allocations, the GPS specifically provides for increased funding of state highways, as well as a modest increase in public transport services funding (up to $3.385 billion and $690 million over the next three years respectively). Instead of specifically listing RONS, as in the GPS 2009, the GPS 2012 provides that possible new routes will be identified through the state highway classification system. However, a number of potential routes are listed.29
3.3.3 Compliance with LTMA
The GPS 2012 marks a continuation of the economic growth and development focus of the GPS 2009. Significantly, the “overarching goal for transport” introduced in the GPS does not include any reference to sustainability or integration as provided for in the s 3 LTMA purpose. This contrasts with the vision statement contained in the GPS 2008 which was identical to both the s 3 purpose and NZTS vision.
In addition, the GPS 2012 only makes one reference to “sustainable” in the context of ensuring that sustainable public transport networks do not require increasing levels of subsidy. However, the reference made to “sustainable” clearly relates to the economic sustainability of the public transport network — ie its ability to sustain itself with limited funding. As with the GPS 2009, there is a broad statement that the adverse environmental effects from land transport will be reduced but no consideration is given to how this might be achieved and no specific policies aimed at environmental sustainability could be identified.
Notably the GPS 2012 does not contain any reference to the NZTA providing for specific RONS.
While public transport services funding has increased, a large amount of this increased funding is to be used to service public transport infrastructure loans, increased track access fees for rail services and (in Auckland) electric trains. Public transport funding is also encouraged in terms of how it can achieve economic objectives: “There are opportunities in the main centres for public transport to make a stronger contribution to economic growth
and productivity, primarily by relieving congestion and improving access to economic opportunities.”30
3.4 Conclusions
The GPS 2009 and 2012 mark a dramatic change in focus from modal shift and reduction in greenhouse gas emissions to economic growth and productivity. Other than bland statements regarding the reduction of adverse environmental effects, they contain no consideration of how land transport funding might be used to achieve sustainability, particularly environmental sustainability. Overall, the GPS 2009 and 2012 appear contrary to the purpose of the LTMA. This will be discussed in more detail when assessing the legality of the GPS 2009 and 2012 below.
4. LEGALITY OF THE GPS
Given the above preliminary analysis of the GPS 2009 and GPS 2012, it appears that they may not comply with the s 87 LTMA requirements for preparation of a GPS, particularly in relation to environmental sustainability objectives.
This section of the article will consider whether the Minister of Transport has made a reviewable error of law with respect to the preparation of these GPS. The analysis is based on an earlier legal opinion31 and will focus on the potential failure to consider mandatory relevant considerations, as this is the most promising ground of judicial review.
4.1 “Must be satisfied”
Prior to any assessment of whether such a failure has occurred, the empowering statutory provision must be examined.
Section 87 provides that the Minister of Transport “must be satisfied” of certain factors when preparing a GPS. This is a type of subjective empowering clause, whereby the Minister ultimately decides whether certain criteria are met. If the applicant can establish that the authority could not have been satisfied that statutory criteria were met, a court will be entitled to hold the act invalid unless the authority persuades the court that it did in fact genuinely form such
an opinion. However, the applicant will need to discharge a heavy burden.32
When determining whether he or she is satisfied, the Minister must:33
... properly direct himself as to the test he is to apply, he must take all relevant considerations into account and he must exclude extraneous considerations.
More recently the courts have held that an authority’s decision must “be based on evidence and reason”34 and “must observe the purposes and criteria specified in the legislation ... [and] promote the policy and objectives of the statute”.35
4.2 Mandatory Relevant Consideration
Statutory criteria may be mandatory or permissive. The decisionmaker must take into account mandatory criteria and may take into account permissive criteria.36 To establish whether a particular criterion is mandatory or permissive requires analysis of the statutory wording and where the statute provides that something “shall” or “must” be done then this will raise an inference that the criterion is mandatory.37
When addressing mandatory relevant criteria, decisionmakers must approach them with due deliberation and openness of mind. Mandatory considerations must be given “genuine and not merely token ... or superficial regard”38 and may not be “rebuffed ... by a closed mind so as to make the statutory process some idle exercise”.39
Failure to discuss a mandatory relevant consideration may give rise to an assumption that it was not considered and an error of law may arise where a mandatory relevant consideration is not “separately and explicitly considered”.40 Furthermore, mere repetition or reference to a relevancy does not necessarily amount to adequate consideration.41
Unison Networks Ltd v Commerce Commission [2008] 1 NZLR 42 (SC) at [53].
However, an important distinction must be made between determining whether a mandatory relevant consideration has been taken into account and the weight given to the relevancy by the decisionmaker. While the courts may engage in an assessment of the former, the weight to be given to a particular matter is for the decisionmaker alone42 and arguments made on the basis of “wrong weight” are “value judgments rather than questions of law”.43
4.3 Application to GPS
As set out previously, s 87 LTMA provides that the Minister “must, in preparing the GPS be satisfied that the GPS” contributes to and is consistent with a number of criteria. The criteria which the Minister potentially has not complied with include:
(i) “contributes to the aim of achieving [a] ... sustainable land transport system” (s 87(1)(a)(i));
(ii) “contributes to ... protecting and promoting public health” (s 87(1)(a) (ii)(D));
(iii) “contributes to ... ensuring environmental sustainability” (s 87(1)(a) (ii)(E));
(iv) “is consistent with any ... national energy efficiency and conservation strategy” (s 87(1)(a)(iii)(B)).
While s 87 is a subjective empowering provision, the Minister must have in fact been satisfied that all relevant statutory criteria have been met in accordance with the statutory purpose. This assessment also includes a requirement to take into account all mandatory relevant considerations.
From the use of the term “must” in s 87 and the fact that the empowering provision contains a “closed list” of criteria, it is arguable that the listed criteria are all mandatory relevant considerations. Section 87 contains an inclusive and integrative set of factors and the use of the term “each of the following” implies that there is no ability to trade off certain objectives; all factors must be contributed to, not just “assisting economic development”. The environmental sustainability and public health criteria also directly relate to the expressed sustainability purpose of the LTMA.
While the Minister need only be satisfied that the GPS contributes to achieving these criteria, this opinion must be reasonably held and consideration of the criteria must be made with due deliberation and openness of mind.
The Minister must be satisfied that the GPS contributes to the aim of achieving a sustainable land transport system and to “ensuring environmental sustain ability”. In addition, the GPS must contribute to “protecting and promoting public health” which is also tied to sustainability objectives.
As set out previously, the GPS 2009 and GPS 2012 do not contain any discussion of whether the GPS will contribute to either the broad concept of “sustainability” or the more specific “ensuring environmental sustainability”, other than the statement that adverse environmental effects should be reduced. This proposed reduction of adverse environmental effects does not amount to environmental sustainability, which goes beyond mere consequential mitigation of adverse effects.
In addition, the use of the word “ensuring” in the requirement that the GPS “contribute to ensuring environmental sustainability” is arguably a stronger directive than “assisting” which is used in conjunction with economic develop ment. “Contribute” is defined as “to do a part in bringing about” and “ensure” is defined as “to make certain the occurrence or arrival of (an event), or the attainment of (a result)”44. The combined use of the terms “contribute” and “ensuring” necessarily create an obligation requiring that the GPS provide for some positive action to be taken to achieve the environmental sustainability objective. This significantly contrasts with the standard requirement to “take into account” a statutory criterion, which merely requires that a decision maker weigh up the matter with other considerations when they are making a decision.45
The policies contained in both GPS strongly focus on economic growth and efficiency. This contrasts with the GPS 2008 which contained policies supporting modal shifts in favour of public transport and reductions in greenhouse gas emissions.
Given the failure to discuss sustainability other than in a token and super ficial manner, it is arguable on the face of the GPS 2009 and 2012 that the Minister has failed to consider these mandatory relevant considerations when preparing the GPS. As noted above, mere repetition or reference to a relevancy does not necessarily amount to adequate consideration. If the Minister had properly engaged with these considerations, one would expect to see at least a discussion of common environmental sustainability issues such as greenhouse gas emissions from transport, as evident in the GPS 2008.46
46 In 2009, the largest source of greenhouse gas emissions in the energy sector was road transport, contributing 12,386.1 Gg CO2e (39.5%) — Ministry for the Environment
As discussed previously, the briefing papers prepared for the Minister of Transport for both the GPS 2009 and 2012 contain brief and perfunctory analysis of whether the GPS meet the “ensuring sustainability” criterion. Given the fact that such analysis was included in an appendix to a briefing paper that itself does not include any reference to sustainability, it is questionable whether the Minister would have separately and explicitly considered whether the criterion was met.
Ultimately, it is uncertain whether this analysis, which is not publicly avail able and not contained within the GPS documents, would be sufficient to dispel an argument that the Minister had failed to consider a mandatory relevant consideration. The outcome would ultimately depend on whether the court considered this analysis was sufficient for the Minister to be satisfied that the criterion was met, while not engaging in an assessment of the weighting given to the criterion.
As well as being integral to establishing compliance with s 87, the statutory purpose must also be promoted by the GPS. To some extent the s 3 purpose “to contribute to the aim of achieving an affordable, integrated, safe, responsive, and sustainable land transport system” overlaps with the s 87 criteria. However, the application of a purposive approach to statutory interpretation strengthens the imperative for the GPS to contribute to sustainability outcomes, including environmental sustainability.
In addition to being satisfied that the GPS contributes to a number of objectives, it must also be consistent with other statutory documents including the National Energy Efficiency and Conservation Strategy (NEECS).47
Similar to the contrasting approaches of GPS 2008 and GPS 2009 / 2012, the targets contained in the NEECS 2011 with respect to land transport are dramatically different to those in the NEECS 2007.
The NEECS 2007 land transport targets included:48
New Zealand’s Greenhouse Gas Inventory 1990–2009 (Ministry for the Environment, Wellington, April 2011) at vii.
47 LTMA, s 87(1)(a)(iii).
48 Energy Efficiency and Conservation Authority New Zealand Energy Efficiency and Conservation Strategy (Energy Efficiency and Conservation Authority, Wellington, 2007) at 12.
(i) to reduce the overall energy use and greenhouse gas emissions from New Zealand’s transport system;
(ii) to reduce per capita transport greenhouse gas emissions by half by 2040;
(iii) for New Zealand to be one of the first countries in the world to widely deploy electric vehicles;
(iv) to have an average emissions performance of 170g/km of CO2 (approximately 7 l/100km) for light vehicles entering the fleet by 2015;(v) to cut kilometres travelled by single occupancy vehicles in major urban areas on weekdays, by 10 per cent per capita by 2015 (com pared to 2007);(vi) for 80 per cent of the vehicles to be capable of using 10 per cent biofuel blends or to be electric powered by 2015; and
(vii) to investigate options for improving the efficiency of the North Island main trunk line, including electrification, by 2010.
These objectives flow directly into and are complemented by the targets contained in the NZTS and GPS 2008.49
In contrast, the following targets for land transport are set in the NZEECS 2011:50
(i) a more energy efficient transport system, with a greater diversity of fuels and alternative energy technologies; and
(ii) by 2016: the efficiency of light vehicles entering the fleet has further improved from 2010 levels.
The NZEECS 2011 targets are to be promoted by continued funding of transport infrastructure to support people to make energy-efficient transport choices, including encouraging the use of different modes of travel, such as walking, cycling and public transport systems. In addition the government will encourage the entry of alternative fuels and electric vehicles into the New Zealand market.
While the GPS 2009 and 2012 focus on economic efficiency is clearly in line with the scaledback targets of the NZEECS 2011, it is important to remember that at the time the GPS 2009 was prepared it was required to be consistent with the NZEECS 2007.
Arguably the GPS 2009 pullback from modal shift and a reduction in greenhouse gas emissions is inconsistent with the land transport targets set in
49 At 50.
50 Ministry of Economic Development New Zealand Energy Efficiency and Conservation Strategy 2011–2016 (Ministry of Economic Development, Wellington, August 2011) at 18.
the NZEECS 2007. However, given that this document has now been super seded, it seems likely that a court would ultimately find that this error has now been rectified and would not grant any remedy.
As set out above, the GPS does not contribute to the sustainability aspect of the purpose and the GPS 2012 even attempts to supplant the purpose with a new “overarching goal for transport”: “an effective, efficient, safe, secure, accessible and resilient transport system that supports the growth of our country’s economy in order to deliver greater prosperity, security and opportunities for all New Zealanders”. This does not contain any reference to environmental sustainability or public health and, despite being labelled an “overarching goal”, is arguably an unlawful attempt to rewrite the legislative purpose of the LTMA.
As set out in the previous analysis of the GPS 2009, the statement that RONS should be “taken fully into account when the NZTA develops the National Land Transport Programme” is arguably in breach of s 89(2) LTMA whereby the GPS “may not impose an obligation on the Agency to approve or decline funding for a particular activity or any combination of activities”. This may in itself amount to a reviewable error of law.
A potential barrier to such an action arises as a result of the deference given to executive decisions by the judiciary.
Courts will generally be reluctant to engage in review of executive actions where they involve a high level of policy or involve the national interest, polycentric considerations or resource allocation.51 Resource allocation is an area in which courts do not generally venture due to the fact that this involves the distribution of limited resources52 and the courts may not consider that they have the requisite expertise or authority to interfere with such allocations.53
The GPS, as its title suggests, is a policy document which provides for funding allocations for land transport activities. Allocation of funds has a high
53 At 292.
policy content and is of a polycentric nature which would not normally be properly subject to judicial review. However, given that an action in judicial review would be confined to whether statutory criteria have been complied with and does not require that the court assess whether the Minister has made an appropriate allocation of funding, an action on this limited basis would arguably not be barred by deference arguments. Having said that, this may have implications for the type of remedy likely to be granted, and consequently the impact such an action would have.
An argument could be made that the Minister has failed to consider a mandatory relevant consideration when preparing the GPS. However, a court is unlikely to grant relief unless the Minister would not have acted that way but for having failed to consider the relevant factor.
Arguably, if the Minister had properly considered whether the GPS contrib uted to ensuring environmental sustainability, at least a greater discussion of such factors and how the GPS could contribute to such objectives would have been engaged in. However, it is important not to enter into argument over what weight the Minister would have attached to the criteria and whether these would have resulted in any concrete changes to funding allocations. Such considerations are perceived by the courts to be “value judgments” and not properly the subject of judicial review.
Whether or not such an action would be successful, the above analysis highlights the perfunctory consideration and limited advancement of sustainability objectives by the government in the transport sector. Furthermore, the lack of consistency with the LTMA’s s 3 purpose and the GPS’s introduction of a new “overarching goal for transport” suggests an attempt by the executive branch of government to develop policy contrary to the statutory direction set by Parliament.
5. THE GPS AND ENVIRONMENTAL SUSTAINABILITY
This section of the article attempts to define “environmental sustainability”, one of the core criteria contained in s 87 LTMA, before assessing whether the GPS 2009 and 2012 sufficiently contribute to this goal.
5.1 Defining Environmental (Ecological) Sustainability
Implicit in the requirement to, inter alia, ensure environmental sustainability is an assumption that environmental sustainability can be defined. As argued in
this section, it is both definable and applicable to the transport sector, even if it remains largely overlooked at a strategic and policy level.54
The definition arises from the ecological literature. Therefore, it is necessary to use the more specific term “ecological sustainability” instead of environmental sustainability. This more accurately reflects current literature on accounting for the ecological price paid for economic growth, and the consequent compromising of socialecological system resilience, adaptability and transformability,55 as well as the need for a more sophisticated linking between globalised economics and ecological sustainability.56
The first step in goal definition is to describe the generic ecological principles underpinning ecosystem functioning (Table 1).
Next, countryspecific key trends are identified. These fall into two categories: connectivity; and spatial and temporal cycles.57
<http://researchspace.itss.auckland.ac.nz/handle/2292/3076> S KnightLenihan “Sustaining sustainable transport in a democracy” (paper presented to World Planning Schools Congress conference: Planning’s Future, Futures Planning: Planning in an Era of Global (Un)Certainty and Transformation, Perth, WA, 4–8 July 2011); S KnightLenihan “Government Policy Statements, Transport Funding and Sustainability” (paper presented to 2Walk and Cycle: creating smarter connections conference, Hastings, New Zealand, 22–24 February 2012).
Table 1 Ecological principles
Principle Description
complexity and time, and are nested. There is no absolute delineation between systems, and equally, functioning systems rely on interactions with other systems. Complexity is a function of the overlap and interaction at different scales. Many ecosystem level features arise only as a result of this complexity, and are not necessarily predictable from the component parts.*
cycles can be accommodated within ecological systems. However, cumulative disturbances and/or largescale disturbances can create profound changes to ecosystem functioning.†
differently in different places and therefore take on or demonstrate unique aspects associated with those places. Ecological processes and the
consequent abundance and distribution of species are influenced by local climate, altitude, longitude and latitude, coastal relationships, hydrology, soil characteristics and geomorphology, as well as biotic interactions (Dale et al 2001).
* From literature covering: ecosystem health and/or integrity (sensu G Park Ecological Integrity — A Key Theme for State of the Environment Reporting in New Zealand Ministry for the Environment Technical Paper No 13: Land (Ministry for the Environment, Wellington, 1998)) and the maintenance of biological diversity (eg VH Dale and RA Haeuber (eds) Applying Ecological Principles to Land Management (SpringerVerlag, New York, 2001); ML McKinney and RM Schoch Environmental Science: Systems and Solutions (Jones and Bartlett Publishers, Sudbury, Maine, 1998); E Odum Ecology: A Bridge Between Science and Society (Sinauer Associates Inc, Sunderland, Massachusetts, 1997); G Park New Zealand as Ecosystems: The Ecosystem Concept as a Tool for Environmental Management and Conservation (Department of Conservation, Wellington, 2000); STA Pickett, RS Ostfeld, M Shachak and GE Likens The Ecological Basis of Conservation: Heterogeneity, Ecosystems, and Biodiversity (Chapman & Hall, New York, 1997)); systemlevel analysis (eg Odum Ecology; RL Smith and TM Smith Elements of Ecology (4th ed, Addison Wesley Longman, Inc & the Benjamin/ Cummings Publishing Company, Menlo Park, Canada, 1998)) and nonlinearity (eg Odum Ecology); and the importance of accounting for scale (eg Dale and Haeuber Applying Ecological Principles; J Leathwick, F Morgan, G Wilson, D Rutledge, M McLeod and K Johnston Land Environments of New Zealand: a technical guide (Ministry for the Environment, Wellington, 2002); J Leathwick, G Wilson, D Rutledge, P Wardle, F Morgan, K Johnston, M McLeod and R Kirkpatrick Land Environments of New Zealand (Ministry for the Environment, Wellington & David Bateman Ltd, Auckland, 2003); TF Snelder and KFD Hughey “The use of an ecologic classification to improve water quality management in New Zealand” (2005) 36(5) Environmental Management 741–756).
† From literature covering: cycle disturbance due to the need to grow food, build shelter, use water,
use or create energy, use or create infrastructure, and the isolation and use of naturally occurring
(i) Trend 1: Disturbance, modification and fragmentation (DMF) (relates to Principles 1 and 2):
Ecosystem connectivity is disrupted by disturbance (disruption of natural cycles), modification (systems changed over time) and fragmentation (isolation through physical separation). New Zealand has experienced high levels of DMF over a relatively short time of less than 1,500 years resulting in acute negative impacts on forests, soils, wetlands, fresh water, and coastal marine systems. Coupled with the introduction of exotic species, there has been a marked reduction in ecosystem functioning. Habitat loss, decreasing patch size and fragmentation greatly reduces or eliminates plant or animal populations, contributing to New Zealand’s high biodiversity loss rates and sometimes high remnant ecosystem management costs.
and created chemicals (eg VH Dale and RA Haeuber (eds) Applying Ecological Principles to Land Management (SpringerVerlag, New York, 2001); V Dale, S Brown, RA Haeuber, NT Hobbs, NJ Huntly, RJ Naiman, WE Riebsame, MG Turner and TJ Valone “Ecological guidelines for land use and management” in VH Dale and RA Haeuber Applying Ecological Principles to Land Management (SpringerVerlag, New York, 2001); K Hamill and D Lew Snapshot of Lake Water Quality in New Zealand (Ministry for the Environment, Wellington, 2006); ST Larned, MR Scarsbrook, T Snelder, NJ Norton and BJF Biggs “Water quality in lowelevation streams and rivers of New Zealand” (2004) 38 New Zealand Journal of Marine and Freshwater Research 347–366; ST Larned, DM Hicks, J Schmidt, AJH Davey, K Dey, M Scarsbrook, DB Arscott and RA Woods “The Selwyn River of New Zealand: a benchmark system for alluvial plain rivers” (2008) 24 River Research and Application 1–21; ML McKinney and RM Schoch Environmental Science: Systems and Solutions (Jones and Bartlett Publishers, Sudbury, Maine, 1998); Ministry for the Environment The State of New Zealand’s Environment (Ministry for the Environment, GP Publications, Wellington, 1997); Ministry for the Environment Environment New Zealand 2007 (Ministry for the Environment, Wellington, 2007); Parliamentary Commissioner for the Environment Weaving Resilience Into Our Working Lands: Future Roles for Native Plants On Private Land (Parliamentary Commissioner for the Environment, Wellington, 2001); M Scarsbrook State and Trends in the National River Water Quality Network: 1989–2005 (Ministry for the Environment, Wellington, 2006); RL Smith and TM Smith Elements of Ecology (4th ed, Addison Wesley Longman, Inc & the Benjamin/Cummings Publishing Company, Menlo Park, Canada, 1998); M van Roon and S Knight Ecological Context of Development: New Zealand Perspectives (Oxford University Press, Melbourne, 2004)); and biodiversity (native and functional) disruption (eg F di Castri and T Younès (eds) Biodiversity, Science and Development: Towards a New Partnership (CAB International, Wallingford, Oxon, International Union of Biological Sciences, 1996); CS Holling “Resilience and stability of ecological systems” (1973) 4 Annual Review of Ecology and Systematics 1–23; MS McGlone, AJ Anderson and RN Holdaway “An ecological approach to the Polynesian settlement of New Zealand” in DG Sutton The Origins of the First New Zealanders (Auckland University Press, Auckland, 1994); Ministry for the Environment, 1997 and 2007; Parliamentary Commissioner for the Environment Managing Change in Paradise: Sustainable Development in Peri-Urban Areas (Parliamentary Commissioner for the Environment, Wellington, 2001)).
(i) Trend 2: Contaminant accumulation: the accumulation of lethal and sub lethal levels of material in ecosystems (relates to principles 2 and 3):
Excess levels of contaminants in waterways are positively correlated (and for lakes, strongly correlated) with extensive and intensive farming and urbanisation. New Zealand’s positive economic performance tracks declining ecological conditions, and this is exemplified by net reductions in water quality. These trends counter reducing impacts from industrial, commercial and agricultural pointsource discharges. Contamination usually involves impacts on top of existing stressors but knowledge of such effects is poor. Failure to effectively consider ecological processes threatens ecological services such as water quantity and quality and fisheries, as well as compromising ecological functioning.
(ii) Trend 3: Accumulated physical change (relates to Principles 2 and 3): Significant impacts over time and space due to, inter alia, habitat clearance, introducing pest species, changes in soil structure (eg compaction) and availability, and urbanisation of bush and/or productive agricultural land. Possibly significantly understated is the long-term effect of the use of fertilisers in agriculture, along with associated structural changes, on soil health, quality and biodiversity.
Trends 2 and 3 can be combined, whereby the existing appearance and productivity of a system is the consequence of cumulative historical events.58 The effects of accumulated change can be linear or nonlinear and may result in tipping points and regime shifts.59 The resulting new stability domain is not necessarily predicted by examining the individual changes themselves; it is therefore necessary to consider additive and synergistic effects.
Consequently, to minimise risk, emphasis is placed on development decisions contributing to reversing existing negative ecological trends (ie com pensating for accumulated ecological deficits) rather than avoiding or mitigating harm. The approach complements evolving development and management techniques and assessment processes aiming to clarify the net benefit of ecosystem restoration.60
(iii) Trend 4: Biological diversity decline (relates to Principles 1, 2 and 3): Coordinated management of private and public land for biodiversity goals is required to complement the significant progress in existing species and habitat protection/rehabilitation. Without this, there will be a continuing net decline in indigenous biodiversity. There is also a need for better funding of biodiversity management in areas controlled by the Department of Conservation and local authorities, as well as a need to enhance functional biodiversity, that is, the contribution made by both indigenous and introduced species to ecosystem services and resilience.
Table 2 summarises the trends and suggested management responses in an ecological assessment matrix (EAM). This summarised description of key issues significantly underemphasises the difficulties associated with achieving any or all of the above goals. For example, while it is accepted there is a need to better manage biodiversity in a coordinated way, identifying what is critical in terms of habitat, and indeed what the biodiversity goals should be, is highly contested. However, what this summary achieves is a précis of what decision makers charged with managing transport need to account for when considering how to contribute to ensuring environmental (ecological) sustainability.
From the above, environmental (ecological) sustainability can be defined, in the context of the transport sector, in the following way. In order to contribute to ensuring environmental sustainability in the New Zealand context, it would be necessary to identify how a transport programme could assist in remediating the accumulated effects of disturbance, modification and fragmentation of the natural and physical environment. This would incorporate physical and contaminant accumulation and biodiversity impacts, and would account for contributions to global impacts, primarily climate change. The suggested management responses in Table 2 would be used as a guide. Where remediation were not possible, avoiding exacerbating the trends in Table 2 should be a requirement, with residual unavoidable impacts mitigated.
This definition and application would have the following effect. Appli- cations for transport funding would need to demonstrate mechanisms for assessing the direct and indirect ecological impacts of a transport initiative. This would include both the effects of, for example, a road corridor as well as the implications for land use as a result of building or modifying in the corridor.
Through Built Environment Design (Earthscan, London, 2008); JM Bullock, J Aronson, AC Newton, RF Pywell and JM Rey Benayas “Restoration of ecosystem services and biodiversity: conflicts and opportunities” (2011) 26(10) Trends in Ecology and Evolution 541–549; R Pardini, A de A Bueno, TA Gardner, PI Prado and JP Metzger “Beyond the fragmentation threshold hypothesis: regime shifts in biodiversity across fragmented landscapes” (2010) 5(10) PLoS ONE e13666.
This would include full emissions profiles. In addition, residual effects would require compensatory actions to result in a net ecological benefit. Examples of the latter could include contributing to land or water rehabilitation within the same catchment, or similar catchments. Offsetting through carbon sequestration would be a secondary option to reducing emissions. The overall effect would be to require transport programmes to demonstrate a net ecologically beneficial outcome, in line with the argument in this section that New Zealand is in a net ecological deficit.
Table 2 Key terrestrial and freshwater ecological trends and suggested management responses.*
|
Key trend
|
Description
|
Suggested management responses: the tools†
available to
decisionmakers should enable
|
|
Disturbance,
|
Indigenous forest clearance,
|
An assessment of, and response
|
|
modification,
|
wetland drainage, loss of
|
to, DMF relative to the local
|
|
fragmentation
|
riparian systems, river
|
situation and in a national
|
|
|
damming, abstraction and
|
context.
|
|
|
channelisation, soil erosion,
|
The assessment of the self
|
|
|
introduction of exotic plants
|
sustainability of remnant
|
|
|
and animals.
|
ecosystems.
|
|
Contaminant
|
Habitat clearance,
|
A strategic environmental
|
|
accumulation
|
introducing pest species,
|
assessment of
|
|
and synergy,
|
changes in soil chemistry,
|
|
|
and
|
structure and availability,
|
effects of development over
|
|
accumulated
|
contaminant impacts on
|
time and space.
|
|
physical
|
water bodies.
|
|
|
change
|
Cumulative impacts
|
capacity (biophysical limits)
|
|
|
(possibly significantly)
|
of local, regional, or national
|
|
|
underestimated. Nonlinear
|
ecosystems or interacting sets
|
|
|
(“tipping point”) responses
|
of ecosystems to assess their
|
|
|
consequently under
|
ability to cope with
|
|
|
appreciated, requiring better
|
accumulation and synergy.
|
|
|
assessment of biological
|
|
|
|
and/or structural/functional
|
of impact) of triggering
|
|
|
ecosystem processes.
|
“tipping points”, both locally
|
|
|
Absence of understanding
|
and globally, and the
|
<http://researchspace.itss.auckland.ac.nz/handle/2292/3076> .
† “Tools” refers to the strategies, policies, legislation, plans or programmes available for the decision makers to use.
possibly leading to decisions consequent creation of compounding existing lowvalue ecosystems. negative trends. • the potential for development
with a net ecological benefit, and the creation of highvalue/ highly resilient ecological systems.
Biodiversity Many areas with the highest The identification of decline biodiversity potential lie opportunities to integrate
outside the conservation indigenous biodiversity estate. management into coastal, Functional biodiversity lowland and montane needs to be better managed “working” ecosystems.‡
to increase the likelihood of Focus on habitat protection improving ecosystem health, and rehabilitation plus integrity and resilience, as incorporating indigenous and well as contributions to functionally valuable exotic ecosystem services. species into agricultural, Underfunding for commercial and domestic
conservation estate land systems. management needs to A process to increase
be addressed. government capacity for protecting indigenous biodiversity.
The designing of a method to estimate the improvement in ecosystem health and associated resilience as a result of the restoration and/or protection of indigenous and exotic biodiversity.
‡ Refer to W Green and B Clarkson A Review of the First Five Years of the New Zealand Biodiversity Strategy: The Synthesis Report (New Zealand Biodiversity Chief Executives, Department of Conservation, Wellington, 2005).
5.2 Applicability to the Transport Sector
Transport systems have particular ecological implications including contributing to fragmentation, air and water contamination, and biodiversity loss.61 In addition, transport, through its influence on land use patterns, can contribute to accumulated ecological decline. Transport design can also exacerbate or mitigate carbon dioxide emissions. However, such ecological effects of roads, within the context of Table 2, are poorly canvassed in the GPS 2009 and 2012. Therefore, decisionmakers are given a limited mandate to consider the full implications of transport impacts on environmental (ecological) sustainability.
This is a perverse situation, given both the availability of data and the clear requirement to ensure environmental (ecological) sustainability.
Reinforcing this perversity is the analysis of the significance of atmospheric carbon emissions by different ministries. For example, following the November 2011 General Election, the Ministry for the Environment’s (MfE) Briefing to Incoming Minister (BIM) noted that62
[c]urrently the conditional emissions reduction target is to reduce emissions by 10 per cent to 20 per cent of 1990 emissions by 2020. It is unlikely that New Zealand’s conditions for this target will be met before 2020. Ministers will need to decide what level of ambition New Zealand needs to demonstrate in the period to 2020 to be credible. A credible position will likely combine a commitment to specific emissions reductions with a wider narrative about the action New Zealand is taking to support the transition to a low carbon economy.
Contrary to this statement the GPS 2009 and 2012 omit any discussion of how such emissions reductions will be facilitated in the transport sector.
The MfE BIM also says that the evolution of resource management has led overall to misalignment and inconsistencies between core legislative frame works. The BIM from the newly formed Natural Resource Sector (NRS)63 suggests alignment is required across water, climate change, the marine environment (including minerals) and biodiversity management. Crosscutting issues are rights and responsibilities, Treaty of Waitangi, rules (and tools), and information flow.
(Enfield Science Publications, New Hampshire, 2002).
Similarly to the MfE and NRS BIMs, the Ministry for Economic Devel opment (MED) BIM says there is a need to better coordinate initiatives. However, the emphasis here is on health, safety and environmental policies and legislation, and implementation. The MED says the integration is needed “[i]f New Zealand is to make a step change in economic development through maximising the value of our resources over the next term of government”.64
Meanwhile, the Ministry of Transport’s (MOT) BIM forecasts a 2009–2030 growth in passenger traffic of 14 per cent and road freight of 24 per cent. As of 2010, emissions from transport account for 17.4 per cent of all greenhouse gas emissions, having increased 66 per cent since 1990.65
Again, the GPS provides no guidance on the implications of transport funding processes in influencing these predictions, nor the responsibility the government might have in establishing the “credible position” noted by MfE.
Also relevant is the MOT’s statement that the government’s primary tool for managing greenhouse gas emission, the Emissions Trading Scheme, will have a minimal effect on fuel consumption because even if the current price per tonne of atmospheric carbon increased severalfold, the effect would be to reduce the growth of emissions from 2010 to 2030 by about 1 per cent.66
The GPS 2009 did not require a climate change risk assessment, nor did it require crossreferencing to New Zealand’s (then proposed) energy strategy. In reference to oil supply security and price, the document noted oil volatility should be accounted for, as for example in having public transport options ameliorate household costs. But the GPS did not give guidance as to how to assess this risk over the medium to long term when deciding between investments in roads or public transport.
The GPS 2012 does pay more attention to reducing transport energy intensity. There is a stronger crossreferencing to the country’s energy and efficiency strategies, and stronger recognition of the role of walking, cycling, public transport, improving energy efficiency, more efficient freight movements, and promoting the uptake of low carbon fuels and technologies. There is an expectation on local government to ensure integrated travel options through their transport and planning roles, as well as an emphasis on optimising existing networks, something which should favour public transport, walking and cycling. However, the GPS 2012 approach remains unsophisticated. It “continues the government’s strong focus on removing key bottlenecks in the land transport network, encouraging economic growth and productivity, obtaining value for money and improving road safety”.67 A contrast can be made with the transport
(Ministry for the Environment, Wellington, April 2012).
and carbon simulation model applied to London, which attempts to quantify the effects of a range of policy options relative to emission reductions goals.68 Known as the Vibat model, it contextualises options such as improving energy efficiencies, promoting low carbon fuels, behaviour change and rising fuel costs, and highlights the jurisdictional Gordian knot of international air travel. Application of Vibat has been scoped out for Auckland, New Zealand,69 but there has been no local or central government uptake at this stage.
In contrast to Vibat, the GPS forecasts from past trends rather than identify ing future goals. For example, emphasis is placed on meeting the current and growing demand on state highways for travel in general and heavy vehicle travel in particular, omitting to discuss the need to fully integrate the environmental costs of such activities.
In summary, despite the readily available and robust data on the key ecological issues actually or potentially affected by transport, the need for better co-ordination between sectors, and the significant and growing gap between current transport emission projections and declared atmospheric emissions targets, the past two transport funding GPS provide very limited and largely ineffectual guidance on how funding agencies should contribute to ensuring environmental (ecological) sustainability.
6. POTENTIAL AMENDMENTS TO THE LTMA
The LTMA as currently drafted, while a dramatic improvement from the road focused Land Transport Act 1998, has a number of deficiencies in terms of achieving greater environmental (ecological) sustainability in the land transport sector. This section of the article proposes a number of potential amendments to the LTMA to ensure that environmental sustainability is given greater prominence and is not able to be traded off in favour of shortterm economic benefit.
6.1 GPS
As set out previously, the introduction of the GPS into the LTMA policy frame work in 2008 was intended to give greater national strategic direction for land
transport funding. However, such guidance could already be delivered through the National Land Transport Strategy (NLTS).
Section 66 LTMA provides that a NLTS may be prepared to “provide guidance to the land transport sector on the Crown’s outcomes and objectives in relation to land transport in New Zealand”. The NLTS would take a long term 30year strategic view and would include the government’s outcomes and objectives for this period, as well as measurable targets to achieve these. In preparing the NLTS, the government would be required to engage in a public submissions and consultation process. While the New Zealand Transport Strategy was utilised by the Labour Government to provide longerterm strategic direction, as a nonstatutory document its status is uncertain and there is no requirement for funding decisions to take its objectives into account.
In contrast, the GPS takes a short to mediumterm view of land transport funding and sets concrete funding ranges for each of the specified activity classes. In addition, it is not subject to a public submissions process and the Minister is only required to have regard to the views of representative groups of land transport users and providers. Given the relatively short 10year timeframe, threeyear revision period and absence of public participation, the GPS, as evidenced by the GPS 2009 and 2012, can be utilised for the shortterm prioritisation of economic goals at the expense of longerterm objectives such as ecological sustainability.
While the inclusion of the GPS allows for greater national control of land transport funding, this is at the cost of the more bottomup approach to funding originally envisaged under the LTMA, whereby regions would prioritise land transport activities in their Regional Land Transport Programme, which would then be further prioritised in the National Land Transport Programme by the NZTA. This allowed for community involvement in the selection of important land transport projects through the Regional Land Transport Strategy and Regional Land Transport Programme consultation processes, as well as through the election of councillors. In contrast, the GPS funding ranges severely curtail the ability of communities to pursue land transport objectives which do not align with that of central government. This is most obviously seen in the Auckland region, which after electing Mayor Len Brown on a platform of enhanced public transport infrastructure, most notably the central rail link, has been faced with a significant funding gap largely due to the National Government’s prioritisation of state highways. This approach is arguably in violation of the principle of subsidiarity, whereby decisions should be taken at the most appropriate level of government; generally by those who are most directly affected, best informed and best able to deal with any consequences of such a decision.70
Therefore, a preferred option for reform would be to remove the GPS from the LTMA’s strategic framework and to provide for the mandatory preparation of a NLTS. This would provide a greater balance between national and regional priorities with the NLTS providing longterm national strategic guidance for the land transport system, including ecological sustainability targets, while leaving regional councils and the NZTA to determine funding priorities for activity classes.
If the requirement for a GPS were to be retained in the LTMA, the subjec tive nature of the empowering clause in s 87 should be amended so that the Minister is required to give effect to each of the criteria listed. This would enable greater oversight by the courts. In addition, the GPS should be made subject to a public submissions process similar to that provided for the NLTS.
6.2 Land Transport Objectives
As set out previously, the LTMA contains five land transport objectives which inform all levels of strategic planning and funding decisions:
(a) assisting economic development;
(b) assisting safety and personal security;
(c) improving access and mobility;
(d) protecting and promoting public health; and
(e) ensuring environmental sustainability.
These objectives are all worthy and necessary aims for the land transport system. However, many of the objectives, such as “environmental sustain ability”, are undefined and, without any form of internal hierarchy, it is easy for certain criteria to be promoted at the expense of others. This is in fact what has occurred in the GPS 2009 and 2012, where the Ministry of Transport has acknowledged that greater emphasis has been placed on the achievement of economic development than environmental sustainability.
If sustainable outcomes are to be achieved in the land transport system, ecological sustainability, as a more accurate term than environmental sustainability, must be elevated in importance to ensure that it cannot be traded off against other objectives.
This could be achieved by strengthening the impact of the s 3 purpose of the LTMA:
(1) The purpose of this Act is to contribute to the aim of achieving an affordable, integrated, safe, and responsive, and sustainable land transport system, subject to ensuring ecological sustainability.
In addition, any proposed strategic or funding documents, as well as individual applications for transport funding, should include analysis of their direct and indirect ecological impacts, including full emissions profiles.
6.3 Need for Overarching Ecological Sustainability Legislation
The GPS provides an excellent example of the potential for ecological sustain ability objectives to be traded off in favour of economic imperatives; reinforced through the use of public finances.71 Given that the LTMA can be amended by each successive government and given the impact of New Zealand’s net ecological deficit on present and future generations, it becomes more and more important to ensure that ecological sustainability as an objective is not compromised.
This would be best achieved by the incorporation of ecological sustainability in entrenched legislation (potentially as part of a future New Zealand constitution), against which Parliament would assess ordinary legislation and on the basis of which the judiciary could hold the executive to account. This reform has the potential to transform the role of the state to that of a trustee with a fundamental obligation to actively protect ecological systems. Aspects of environmental trusteeship are already a part of domestic constitutional law, common law and international law.72
6.4 Land Transport Management Amendment Bill
The government introduced the Land Transport Management Amendment Bill 2012 (the Bill) into the House on 13 August 2012. Along with a raft of other changes, the Bill seeks to replace the current purpose provision of the LTMA with the following:73
The purpose of this Act is to contribute to an effective, efficient, and safe land transport system that supports the public interest.
The Bill also proposes to remove all requirements to meet the five transport objectives when preparing both strategic and funding policy documents under the LTMA, including the GPS.74 In addition, the largely defunct National Land
(Ashgate, Aldershot, 2008), chapter 5.
Transport Strategy is to be replaced by the GPS, and the requirement to produce a Regional Land Transport Strategy would be removed.
Contrary to the amendments proposed in this article, the Bill as currently drafted would remove all requirements to consider environmental (ecological) sustainability within the transport sector. While this strategic direction is unsurprising given the lack of real consideration of ecological sustainability in the GPS 2009 and 2012, it fails to recognise the significant role transportation plays in determining New Zealand’s ecological future, particularly with respect to climate change.
6.5 Conclusion
Overall, the LTMA as it is presently drafted, with its undefined criteria and susceptibility to tradeoffs between environmental sustainability and economic development, is unable to achieve the outcomes necessary for a sustainable land transport system. This failure is heightened by the topdown approach taken in the GPS, which largely ignores community transport spending preferences and leaves the achievement of sustainability outcomes to the political will of the current executive.
7. CONCLUSION
While the GPS was introduced to provide greater national direction to land transport funding, this power to influence funding is not unlimited and must conform with the statutory criteria and purpose contained in the LTMA. The GPS 2009 and 2012 evidence a marked change in policy focus towards economic efficiency and growth, to be achieved through the development of state highway infrastructure, at the expense of the environmental sustainability transport objective and overarching sustainability purpose.
Arguably, in preparing the GPS 2009 and 2012 the Minister failed to consider mandatory relevant considerations contained in s 87 of the LTMA. However, it is uncertain whether a court would hold that there was a complete failure to consider a mandatory relevant consideration given the references in the GPS 2009 and 2012 to the s 87 criteria, contained in briefing papers to the Minister. This would depend on whether the court considered that it were sufficient for such criteria to be superficially addressed in a briefing paper outside of the GPS document itself, as well as whether an attempt to look into the sufficiency of the analysis would amount to assessing the weight given to the criteria, which is outside the proper ambit of judicial review.
Whether or not such an action would be successful, the analysis of the GPS 2009 and 2012 throws into stark relief the perfunctory consideration and
negligible advancement of sustainability objectives by the government in the context of the transport sector. This conclusion is strengthened by the finding that despite readily available scientific data on the ecological issues affected by transport, including climate change, limited and ineffectual guidance has been given by the GPS on how to achieve environmental (ecological) sustainability.
Ultimately, ecological sustainability must be given greater statutory weight in the LTMA and by the executive (in its implementation of legislation), if lasting improvements to New Zealand’s environment are to be achieved and not sacrificed for the attainment of short-term economic priorities.
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