Court action over how e-scooters came to be allowed on footpaths has deemed Waka Kotahi followed the right process. But, with less than a year until the issue rears its head again, the judgment leaves the agency with some food for thought.
The High Court has dismissed three reasons Waka Kotahi got it wrong when allowing e-scooters to be ridden on footpaths.
Advocacy group Living Streets Aotearoa brought the judicial review claiming e-scooters should be considered motor vehicles, the transport agency should have consulted on its decision, and that it erred in its decision because it had no way to ensure more powerful scooters would not be used.
The review fails on all three points, but does not entirely excuse Waka Kotahi for parts of its decision-making process.
Justice Graham Lang confirms Waka Kotahi does not have an enforcement plan in place to make sure e-scooters with higher-powered engines aren't being used.
“It appears that Waka Kotahi did not consider the wider issue of how it was going to ensure that the power output limitation imposed by the Rule and the Notice was being observed. This was important because it impacts directly on safety issues, both for riders of e-scooters and those in the vicinity. It seems that Waka Kotahi had not established a method by which it could reliably measure the maximum power output of e-scooters before it published the Notice, and debates still continue as to how this is best achieved.
“I consider this was an error because Waka Kotahi, or some other agency, needed to have the ability to determine whether individual e-scooters complied with the regulatory requirements should this be raised as an issue. However, failure to take into account a mandatory consideration does not automatically result in a decision being set aside.”
The court action also revealed that from the get-go police told Waka Kotahi they would not be the ones checking powerful scooters were not on the streets.
"Waka Kotahi obviously turned its mind to the issue of compliance to the extent that it engaged with the police on that issue. However, this alerted it to the fact that the police were only interested in rider behaviour. They did not intend to play any role in determining whether e-scooters met the regulatory requirements," the court ruling says.
And while the judgment also confirms there is no requirement for Waka Kotahi to consult on the notice, Newsroom understands the agency is considering doing it anyway when it comes up for review in September next year.
Living Streets Aotearoa member Chris Teo-Sherrell said the legal system had not worked to protect pedestrians.
“Living Streets Aotearoa is considering its options for protecting pedestrians from e-scooters after the High Court did not do so.”
The notice was issued in 2018 after Waka Kotahi was approached by commercial e-scooter companies who wanted to operate in New Zealand.
"We hold that they have no place on footpaths which are for people on foot or using mobility devices such as wheelchairs.” – Chris Teo-Sherrall, Living Streets Aotearoa.
They were concerned the wording of the legislation would see e-scooters wrapped up in specific motor vehicle legislation and called on the agency to issue a declaration confirming they were not.
If the scooters were deemed motor vehicles, riders would need a licence and would have to follow existing laws against driving, stopping and parking on footpaths.
The notice was issued for a five-year period amid controversy around how pedestrians – particularly those using mobility devices or those who were hearing or sight impaired – would fare.
Teo-Sherrell says it has been problematic.
“This resulted in thousands of e-scooters being ridden and left on footpaths in cities across New Zealand, often inconveniencing and sometimes endangering pedestrians and making life extra difficult for pedestrians who are blind or who have other disabilities.
“The decision means that pedestrians, blind and disabled ones in particular, will continue to be inconvenienced, made to feel uncomfortable and endangered by the inconsiderate behaviour of too many e-scooter users who pass pedestrians too quickly and too closely and leave the devices obstructing the footpaths.”
He says e-scooters have the potential to be a useful addition to people’s transport options, but they should be used in cycle lanes and on the road.
"We hold that they have no place on footpaths which are for people on foot or using mobility devices such as wheelchairs.”
Living Streets Aotearoa wants e-scooter companies to adopt technology that stops their devices being ridden at speed and parked on footpaths and wants councils to require the use of such technology.
“The technology already exists and is in use in various cities around the world,” Teo-Sherrell says.
Auckland Council manager Veronica Lee-Thompson says while speed limits and allowing e-scooters to ride on the footpath are regulated by central government, the council has a contract with e-scooter operators to manage issues like the obstruction of footpaths.
“Through this Code of Practice, Auckland Council is able to monitor the day-to-day operations of each operator in terms of deployment of devices, parking compliance, and managing instances of unsafe or inconsiderate parking. Licensed shared micromobility operators must meet a minimum parking compliance of 92 per cent based on monitoring carried out by the council’s street trading inspectors.
“Compliance monitoring is based on categories such as, but not limited to, toppled devices, blocking footpaths, blocking or obstructing access by pedestrians or vehicles to something – for example emergency exits, driveways, doorways or street furniture.”
This agreement does not regulate the use of private e-scooters.
Late last week e-scooter operators Beam and Lime had their arrangements to operate renewed with Auckland Council, but the third operator Neuron was unsuccessful. It means Beam and Lime can operate more scooters each, but bring the total available across the city down slightly.
A spokesperson for Waka Kotahi says it is reviewing the judgment and will consider the comments made by the High Court prior to the expiry of the current notice.
