Court gives guidance on consultation and decision-making process
Court gives guidance on consultation and decision-making process
Wednesday 30 March, 2022
A recent High Court case shows the difficulty of reversing course after consultation is finished. Marlborough District Council (MDC) went out to public consultation on a freedom camping bylaw in which freedom camping in a self-contained vehicle was permitted everywhere except in areas which were expressly prohibited or restricted (default permission). Following consultation, it adopted a bylaw which prohibited freedom camping except in named areas (default prohibition). The NZ Motor Caravan Association successfully challenged this in Court on three grounds.
The first ground was that, having gone out to consultation on default permission, MDC should have considered whether to consult on moving instead to a default prohibition approach. MDC didn’t consider the impact or the costs and benefits of the change of position and decide on the appropriate manner in which it should consult this significant change. This case shows the importance of pausing and reflecting if substantial changes are being discussed after consultation. It may or may not be necessary to re-consult, but it is vital to think about it.
Secondly, MDC hadn’t considered what was the appropriate and proportionate response to the issues in each area identified as required by the Freedom Camping Act. There was not only no written record of the particular analysis in relation to each area, but a lack of any evidence of a genuine attempt at the analysis of each area against the requirements of the Act. The third ground was that the bylaw was invalid under the Bylaws Act 1910. Given that the bylaw didn’t satisfy the requirements of the Freedom Camping Act (the second ground), the Court found that it was invalid under the Bylaws Act. These two grounds demonstrate the value of councils keeping records that they have considered, and are satisfied of, the required matters.
Another interesting note in this case is that MDC has no central, comprehensive database of all land it owns or controls. It said that this created an administrative challenge when it came to making decisions about freedom camping. Councils have limited resources and the Judge did not criticise MDC for the lack of a central database. However, most councils in the country have been in their present form for decades and it is difficult to justify a lack of central records so long after amalgamation.
This decision is a timely reminder for councils to at least reconsider the need for further consultation if it makes substantial changes after its initial consultation.
Talk to one of our experts
Related Articles
Councils challenge to transfer of water services rejected in High Court
Thursday 30 March, 2023
When the rubber hits the road - All aboard Aotearoa's challenge
Tuesday 11 October, 2022
Declarations that an Enactment Inconsistent with Bill of Rights
Tuesday 11 October, 2022
Proposed mandatory consideration of specific Māori representation
Tuesday 11 October, 2022
New Regime for Protected Disclosures (Whistleblower legislation)
Wednesday 29 June, 2022
Operative plans and proposed plans: what to do when there is a significant policy shift?
Wednesday 30 March, 2022
Notices of requirement are relevant for resource consent applications
Wednesday 30 March, 2022
Avoidance policies reign in the wake of King Salmon, but what do they require?
Wednesday 30 March, 2022
Cultural evidence and the continued draw of the overall judgment
Tuesday 21 December, 2021
Fluoridation debate lifted from shoulders of local government
Tuesday 21 December, 2021
Will new housing density rules increase contributions for developers?
Thursday 28 October, 2021
Judicial review of Hamilton City Council's development contributions policy
Tuesday 5 October, 2021
Lease of Wanaka Airport set aside due to insufficient consultation
Tuesday 15 June, 2021
What if an abatement notice requires you to breach the Resource Management Act?
Tuesday 15 June, 2021
“No ‘wine-ing’ covenants” declined for a subdivision consent in Gibbston Valley
Tuesday 15 June, 2021
From car parking fine to judicial review of a council’s code of conduct
Tuesday 15 June, 2021
Councils remain liable for compliance of contractors with the RMA
Thursday 18 March, 2021
Randerson Report released: New Direction for Resource Management
Wednesday 5 August, 2020
Could companies be liable to the public for the harm caused by their emissions?
Tuesday 10 March, 2020
Avoiding double penalties when sentencing a company and director
Thursday 23 April, 2020
Can an easement be granted over an esplanade reserve for a commercial activity?
Thursday 12 December, 2019
Draft National Policy Statement for Freshwater Management 2019 for consultation
Thursday 3 October, 2019
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
Bella Vista: MBIE Report highlights failure to perform statutory functions
Tuesday 9 April, 2019
Recent decision on "affected persons" highlights the importance of context
Wednesday 28 November, 2018
High Court finds Council liable in negligence for damage from fallen tree
Thursday 27 September, 2018
Court upholds sensible approach to local authority works on private property
Tuesday 24 July, 2018
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
