High Court bid to ban e-scooters from footpaths fails

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Rod Vaughan

A high-powered legal battle to ban e-scooters from New Zealand’s footpaths to protect the safety of pedestrians has failed and there now appears to be little or no chance of pursuing the matter any further.

Late last year the High Court dismissed three major claims against e-scooter use brought by advocacy group Living Streets Aotearoa and backed by former High Court judge Sir David Williams KC.

In essence, the claims stated e-scooters should be considered motor vehicles, requiring riders to gain a licence, that Waka Kotahi should have held consultations before allowing their use and that the agency was wrong in failing to ensure that overly powerful e-scooters were not being used.

Living Streets Aotearoa argued that e-scooters should be forced to use bike paths and roads instead of footpaths where they pose a serious threat to pedestrians, especially the blind and disabled.

The group said its greatest concern was that Waka Kotahi failed to uphold New Zealand’s obligations under the United Nations Convention on the Rights of People with Disabilities (UNCRPD).

However, this cut no ice with Justice Graham Lang, who in his judgment said the transport agency did not have to consider the convention because it was not a requirement written into its controlling legislation.

That said, Justice Lang did acknowledge that Waka Kotahi does not have an enforcement plan in place to make sure e-scooters with higher-powered engines aren’t being used.

“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,” the judge said.

“However, failure to take into account a mandatory consideration does not automatically result in a decision being set aside.”

The judgment left Living Streets Aotearoa executive council member Dr Chris Teo-Sherrell feeling “shocked, disappointed and flabbergasted”.

He told LawNews he was “thoroughly disappointed” that the High Court dismissed arguments that the disabled community should have been consulted beforehand.

“If that dismissal was valid, then we are left wondering just what is the point of New Zealand ratifying international conventions such as the UNCRPD. Ratification is not about passing stand-alone Acts but about exercising all aspects of statutory power in accordance with the conventions we ratify, unless we specify exceptions when we sign up.”

Teo-Sherrell says taking everything into consideration, Living Streets Aotearoa has decided not to appeal the High Court’s decision.

“But it is not the end of our efforts to have the riding and parking of e-scooters on footpaths banned. And we will look with interest to see how Waka Kotahi addresses the court’s finding that it did err in not having a way of assessing compliance with the maximum power output condition.”

Sir David Williams KC – a driving force behind the campaign to have e-scooters banned from footpaths –said he was disappointed with the outcome.

“I think it is a shame there is not going to be an appeal because the judge, in my view, should have addressed all the definitional issues so as to make it clear what the regulator must do next time around.”

Sir David first raised his concerns about three years ago in a letter to The New Zealand Herald

As a keen cyclist, he complained that while he was required to ride on the road and take his chances with trucks and cars, motorised scooters were allowed to use footpaths without any consideration being given to pedestrian rights and safety.

Sir David later told LawNews it was “truly astonishing” that neither local nor central government considered the obligations they owed under the 2006 UN Convention on the Rights of Persons with Disabilities (UNCRPD) to which they are a party.

“In my opinion, that failure was a clear breach of Article 4 (1) and Article 3 of the convention.”

He said allowing e-scooters and other motorised transport devices and bicycles to operate on footpaths was not only inconsistent with New Zealand’s international obligations to promote full inclusion of disabled people and to remove barriers to them, but would also put major obstacles in their way, both figuratively and literally.

Sir David’s concerns led him to approach Living Streets Aotearoa which was already contemplating a legal challenge to regulations allowing e-scooters on footpaths and it was then that Auckland law firm Wilson Harle also became involved.

With input from Sir David, the law firm based its judicial review application on the UNCRPD which New Zealand signed in 2007 and ratified a year later.

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