The beloved local grocers lost a legal challenge to stop a new cycleway outside their store. Joel MacManus reports.
In the annals of New Zealand legal history, there are a few brave people who have dared to stand up to the powers that be, no matter how bleak the odds are. Bishop Brian Ashby, who tried to overturn the decision to grant visas to the 1981 Springboks team. Students for Climate Solutions, who challenged the energy minister’s decision to allow oil drilling permits. Wi Parata, who sought to have customary Māori land titles recognised by the courts.
All of those valiant efforts failed, but that’s not the point. What’s important is that they tried. Widely beloved local grocers Foodstuffs deserves a spot on that list too, for their recent David vs Goliath effort to stop Wellington City Council from putting a new cycleway outside their Thorndon New World store.
The cycleway would have allowed thousands of people from nearby suburbs to access the supermarket via a safe, connected bike lane, a devastating outcome for any business in a densely-populated central area.
With an economic downturn, rising inflation, and a new grocery commissioner cracking down on their cherished duopoly, times have been tough for Pam and Charlie Foodstuffs, who own and operate the Thorndon New World store, as well as all New World stores around the country.
The young couple took over the family business last year from Pam’s grandfather, Budget. “He loved this place so much, but as he got older he struggled to do the day-to-day basics of running a supermarket, like stacking boxes of cereal, or writing restrictive land use covenants to prevent competitors opening up nearby. I promised him I would do whatever it took to keep this business alive,” Pam told The Spinoff, eyes moist.
Foodstuffs pleaded with the council to have mercy and move the cycleway further away from their good-hearted, car-driving customers. They made the reasonable suggestion to shift the cycleway to the other side of Murphy Street, in front of a motorway offramp. Their polite request was denied because, well, motorway offramps are a terrible place to put bike lanes. “The council thinks they can do whatever they want, simply because they are duly elected representatives with statutory authority over traffic decisions on the local roads and had followed all the legally required processes. It was completely undemocratic,” Pam said.
The only way to save their business and livelihood was to fight the council in the courts. After much consideration, Foodstuffs filed a judicial review. It was a long, expensive and stressful process, but Foodstuffs knew it would all be worth it if it stopped kids from safely cycling to nearby schools.
Justice Robin Cooke, Lord of Thorndon, once wrote that some common law rights go so deep that even parliament cannot destroy them. Foodstuffs approached their case in much the same way; the right to be stuck in traffic inside an SUV is fundamental to the New Zealand way of life.
Several other recent judicial reviews against cycleways in Wellington had failed because they were borderline-vexatious lawsuits by angry businesses and groups throwing a pointless tantrum because they didn’t get their way. But this was different. Foodstuffs had a really, really strong case.
Foodstuffs’ lawyers argued Wellington City Council did not consult with them properly, and didn’t consider safer alternative options, such as the motorway offramp idea.
The case got off to a promising start. Court documents proved the council never even tried to consult with Foodstuffs, except for: an initial outreach email inviting Foodstuffs to discuss the cycleway; an in-person meeting with senior Foodstuffs staff; a follow-up email summarising concerns raised by Foodstuffs; a three-week public consultation with 2,435 submissions including one by a Foodstuffs solicitor; another in-person meeting between council and senior Foodstuffs staff; an oral submission by Foodstuffs in front of a council committee; and a notice of motion by mayor Tory Whanau committing to ongoing engagement with Foodstuffs.
“It was like we were shouting into the wind. They only seem to listen to fat cats in the bicycle lobby. Small retailers like us may as well be invisible,” Pam said.
When challenged to show it had properly considered the safety of the bike lane, Wellington City Council had nothing. The only evidence it could scrounge up was: the initial project brief, a multi-criteria analysis document, an external safety audit, and a second external safety audit.
To put the final nail in the coffin, Foodstuffs’ lawyers proved the council completely ignored their suggestion to move the cycleway in front of the motorway offramp, except for in one expert report which considered and responded to 140 pieces of design feedback, including submissions made by Foodstuffs. The report said putting the cycleway on the motorway side of Murphy Street would cause a “high safety risk” because of “the high speeds due to the angle of the ramps and volumes of traffic”, while putting on the New World side would be “less of a safety risk” because of slower vehicle speeds and lower volumes.
Despite the overwhelming evidence, High Court judge David Johnstone ruled in favour of the council. “None of Foodstuffs’ causes of action are made out,” his finding read. He said the council’s decision to put the cycleway next to the supermarket was “very far from being a decision that no reasonable local authority could have reached.” Wellington City Council is currently considering whether to seek legal costs against Foodstuffs.
As we went to press, Pam and Charlie were staring glumly at their dust-covered counter while tumbleweed danced down the confectionary aisle. Suddenly, a crinkled five-dollar note was thrust in front of them. They looked at each other, confused. Then, to the sound of uplifting violin music, a line of loyal customers stepped forward one-by-one to donate what little they had to the small family business that had given them so much.