He found a 2020 amendment to the rules had no bearing on the original decision, as there was no suggestion the amendments were designed to be retrospective.
Last month, a group of concerned citizens challenging the legality and safety of the crossing took a judicial review to the High Court against the Wellington City Council and the NZ Transport Agency. It related to the WCC’s installation and maintenance of the colourful paint strips commonly known as the “rainbow crossing” on Dixon St, where it crosses Cuba St.
The group argued the crossing was a safety risk, as it caused confusion for pedestrians and road users “as the markings painted on the road look like a pedestrian crossing, even though it is not one and the intersection is controlled by lights.”
The crossing was also located on a road where many vehicles exceed 30km/h, and was likely to mislead or confuse drivers and pedestrians.
This was despite the court hearing there have been no accidents or deaths at the crossing, despite an estimated 500 cars using it each day.
The group claimed the crossing breached the Land Transport Rule and sought to overturn a 2021 declaration by the Director of Land Transport that the crossing did not contravene the rule.
It also sought a declaration that NZTA be asked to reconsider the 2021 determination, taking into account the court’s determinations.
Justice McHerron ruled the rainbow markings served a purpose connected with the use of the road, and the additional purpose of supporting and celebrating LBGTQIA+ pride and did not compromise safety.
“I am not persuaded either as a matter of law or from the available evidence that the rainbow markings mislead pedestrians into the mistaken conclusion that the crossing is a pedestrian crossing at which they always have the right of way,” the decision said.
Having regard to the additional safety features such as speed cushions and a report by Stantec New Zealand, which highlighted there was a “high level” of safety at the location, he concluded the rainbow crossing did not resemble a zebra crossing, nor did it mislead road users about its meaning.
Justice McHerron also concluded because the rainbow markings had a purpose related to the use of the road, the transport agency wasn’t required to give its approval.
He ruled the rainbow crossing was lawful under the Land Transport Rule as it was in 2018 when the crossing was installed, and the subsequent amendments were not retrospective.
He dismissed the application.
Justice McHerron ruled if the parties were not able to resolve the issues of costs between themselves, they should file memorandums with the High Court next month.
Wellington mayor Tory Whanau described the decision as a “Pride month victory”.
“Today’s court ruling reaffirms Wellington’s Rainbow Crossing as a symbol of our city’s inclusive spirit, and is a victory for diversity and acceptance,” she said.
“The court decision also reinforces the message that our public spaces should reflect the diversity of our community. Yesterday, Wellington City Council voted unanimously to request officers to work with the Berhampore community to find a space to implement the trans flag as street art or a public mural. Leftover funds from the Berhampore town centre beautification project are to be used for this purpose.
“I’m committed to fostering a city where everyone feels welcome and valued, and proud to be Mayor of New Zealand’s rainbow capital.”
Who’s behind the court action?
The group that took the judicial review originally comprised Avataeao (AJ) Ulu, Phillipa Ulu, Deanna Merania Roa, Don Grant Tainui Roa and Lynesoa Tuiqere.
But the decision lists only three applicants, Deanna Merania Roa, Don Grant Tainui Roa and Lyneosa Tuiqere.
Deanna Roa stood as a candidate for Vision New Zealand at the 2023 general election. The party’s leader, Hannah Tamaki, is the wife of Destiny Church leader Brian Tamaki.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.
