Burton v Queenstown Lakes District Council
[2025] NZHC 3218
•28 October 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2025-425-87
[2025] NZHC 3218
BETWEEN DANNA DIXON BURTON
First Plaintiff
AND
QUEENSTOWN LAKES DISTRICT STREET FOOD VENDORS (QLDSFV) SOCIETY INCORPORATED
Second Plaintiff
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Defendant
Hearing: 23 September 2025 Appearances:
Plaintiff in person
M E Davenport for Defendant
Judgment:
28 October 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 28 October 2025 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BURTON v QUEENSTOWN LAKES DISTRICT STREET FOOD VENDORS (QLDSFV) SOCIETY INCORPORATED [2025] NZHC 3218 [28 October 2025]
Introduction
[1] The plaintiffs,1 being Ms Danna Burton, the chairperson of the Queenstown Lakes District Street Food Vendors Society Inc (the Society), and the Society itself, seek judicial review of the Queenstown Lakes District Council’s (the Council’s) decision to adopt the Activities in Public Places Bylaw 2023 (the Bylaw).
[2] The plaintiffs challenge the Bylaw in a number of ways, but in particular, they take issue with the way the Bylaw was made, saying it introduced controls on mobile street traders2 which were not fairly signalled or disclosed during the consultation process and which were incorporated in the Bylaw without any opportunity for public response and consultation, in breach of the requirement of the Local Government Act 2002 (the LGA).
[3] The particular changes the plaintiffs say were not signalled in the Statement of Proposal for the Bylaw and which are relevant to this hearing, are that:
(a)mobile street traders must either register as complying activities under cl 12.1 or seek a permit from the Council under cl 12.2; and
(b)Council gave itself the power, under cl 11 of the Bylaw, to prohibit mobile trading in any area.
[4] In reliance on the power in cl 11.2(a), on 17 April 2025, the Council resolved to prohibit pop-up stalls for one year on the Queenstown Lakefront, with existing pop-up stall permit holders able to continue to trade until their permit expiry date (and which were extended to expire no sooner than 31 August 2025). With the removal of the Lakefront as a permitted area, there are only two streets in Queenstown where pop-up stalls are permitted to operate under cl 12.1.
[5] It was this resolution which prompted both the application for judicial review of the Bylaw and the subsequent application for interim relief restraining the Council from “enforcing the Activities in Public Places Bylaw 2023” pending determination
1 While they are technically the applicants in this hearing I will refer to them as the plaintiffs.
2 I use the terms “pop-up stalls” and “mobile street traders” interchangeably in this judgment.
of the judicial review proceedings. However, on further questioning of Ms Burton at the hearing, it seems she and the Society are only seeking to restrain the Council from enforcing its resolution of 17 April 2025, so that mobile traders can continue to operate on the Queenstown Lakefront under their current authorisation or permit until the application for judicial review has been heard and determined.
[6] Before considering the application for interim relief to prevent implementation of the Council’s resolution of 17 April 2025, there is considerable background to this application which needs to be set out so that it is clear:
(a)what changes were introduced by the 2023 Bylaw; and
(b)what the impact would be on the plaintiffs if the interim relief they seek is declined.
To do this, I first need to identify what the position was under the previous bylaw insofar as it affected the plaintiffs.
The 2016 Bylaw
[7] In September 2016 the Council formally made the Activities in Public Places Bylaw 2016 (the 2016 Bylaw). It contained a number of provisions which are relevant to the current proceedings. These include:
(a)Clause 10 which governed events in public places. An “event” was defined in cl 6 to mean:
an organised, temporary activity that takes place on one or more days, including a market, pop-up stall, parade, protest, wedding, private function (which is independent of premises), festival, concert celebration, multi-venue sports event of a significant scale, fun run, marathon, duathlon or triathlon.
(italics added)
Clause 10.2 provided that:
A person must not undertake any trading activity (including a temporary food or temporary drinks outlet) in connection with an event held in a public place unless the event is authorised by permission granted under Part 3 of this bylaw, or the event does not require permission under cl 10.1.
(b)Clause 12, which governed busking and provided, at cl 12.1, that a person was authorised to busk in a public place provided nine specified conditions could be met, which included that the busker be spaced at least 50 metres from another busker, be spaced at least three metres from any residential, retail or commercial premises, and not perform in the same location for longer than one hour without at least a 30 minute break between performances. Alternatively, cl 12.2 provided that a busker who could not meet the specified conditions in cl 12.1, could busk in accordance with permission obtained under Part 3 of the 2016 Bylaw or under a resource consent from the Council.
(c)Under Part 3 of the 2016 Bylaw, provision was made for the Council to grant permissions for “an event, an organised licensed premises tour, or a busking performance”, and set out various factors which the Council would consider when deciding whether to grant permission and on what conditions.
[8] Other than requiring permission for pop-up stalls which were part of a temporary event, it is clearly arguable that there was no requirement under the 2016 Bylaw for mobile traders to obtain consent or permission to operate under that bylaw. There was also no express power in the 2016 Bylaw to determine where mobile trading activities took place.
The 2023 Bylaw
[9] Before drafting the proposed new bylaw in 2023, Ms Carrie Williams the Council’s policy manager, explains that the Council engaged with a range of stakeholders to see what issues of concern there were with the 2016 Bylaw. She said the feedback received about the 2016 Bylaw was positive and the current system was
working well, although there were comments about trading and busking with concerns that the noise caused by buskers could dominate the lakefront environment in Queenstown.
[10] The Council resolved to consult on the draft bylaw using the special consultative procedure outlined in ss 83 and 86 of the LGA. The Statement of Proposal3 set out, in summary, at Section 2, the key changes proposed in the draft bylaw. Relevantly these were said to include:
(a)amendments that ensure trading activities are separately covered in the bylaw instead of just in connection with an event; and
(b)providing that Council can, by resolution, specify certain public places or parts of public places where trading activities and busking are permitted.
[11] The draft bylaw was based on the 2016 Bylaw and the proposed amendments to it were indicated by way of tracked changes in the draft bylaw. The proposed amendments introduced:
(a)a more detailed definition of “trading activity” that included pop-up stalls and mobile shops;
(b)a new cl 9 which required trading activities, events and licensed premises tours to obtain permission from the Council under that clause;
(c)a new cl 11, that provided that Council could, by resolution, declare:
(i)any public place or part of a public place to be an area where busking or a trading activity is approved or prohibited;
3 Which is required to be prepared under s 83(1)(a) of the LGA where, as here, the special consultative procedure is adopted.
(ii)any public place or part of a public place to be an area where busking or a trading activity is restricted or only permitted in a specific location;
(iii)a trading activity to be prohibited for any period.
[12] The Statement of Proposal said that registration would continue to be required for busking in public places albeit Council would review the permitted sites and noted, as an aside, that registration was also currently required under the 2016 Bylaw for pop-up stalls and street collectors. However, as already noted, the 2016 Bylaw does not appear to require a permit or registration for pop-up stalls unless they are part of an organised, temporary event.
[13] Fifteen submissions were received on the draft bylaw and five people spoke to their submission before a hearing panel convened on 15 June 2023. Ms Williams, who prepared the hearing panel report summarising submissions, observed that submitters were invited to complete a survey questionnaire in relation to the draft bylaw and seven did so. In that questionnaire they were asked whether they supported the requirement for “registration for busking, pop-up stalls and charity street collectors in public places”. Ms Williams notes that one submission, from Hospitality NZ, observed that “their members pay fees for outdoor dining which is sometimes undermined by a nearby busker.” Ms Williams explains that this suggests that it was considered that the word “buskers” was taken by the submitter to include pop-up stalls selling food and beverages. While all seven persons who completed the questionnaire answered “yes” to the question of whether they supported the requirement for registration including of pop-up stalls, there was a mixture of views from those submitters as to whether buskers and pop-up stalls added to or detracted from the vibrancy of public places.
[14] As an outcome of the submissions, the hearing panel recommended that the Council make further changes to the draft bylaw. These changes included:
(a)adding wording to clarify that anti-competitive behaviour between buskers and pop-up stall holders is in contravention of the bylaw;
(b)requiring that buskers, pop-up stall holders and charity street collectors carry proof of registration; and
(c)adding wording to the bylaw to “clarify” that the online registration regime and conditions which applied to buskers and charity street collectors, also applied to pop-up stalls, which Ms Williams said was “as per the current practice”.
[15] For the purposes of this hearing, the key provisions of the Bylaw that was made by the Council are as follows:
(a)it incorporated an extensive definition of “trading activity” which reads as follows:
Trading activity means an activity undertaken by any person involving the sale of goods or the offering of a commercial service for payment, reward or otherwise, in a public place, including but not limited to: pop-up stalls, mobile shops, micromobility device rental scheme operations, temporary drinks outlet or temporary food outlet. A trading activity may be temporary or permanent or occur on a one-off basis or as a series of activities.
(b)it introduced new controls on “pop-up stalls” through cl 8 which reads as follows:
8 Busking, pop-up stalls and charity street collection in public places
8.1No person may busk, operate a pop-up stall or undertake charity street collection except in accordance with this bylaw.
8.2A person may busk, operate a pop-up stall or undertake charity street collection in a permitted area approved by
Council under clause 11 of this bylaw if they have registered in the Council online register and agreed to comply with the conditions in clause 12 of this bylaw.
8.3Persons seeking to busk, operate a pop-up stall or undertake charity street collection outside of a permitted busking area or outside the conditions in listed in clause 12 must apply to the Council for permission to operate in accordance with clause 3 of this bylaw.
(c)it introduced provisions at cl 9 which brought “trading activities” under the Council permit regime in the same way that events and organised licensed premises tours had been under the 2016 Bylaw. Clause 9 reads as follows:
9 Trading activities, events and organised licenced premises tours in public places
9.1Except in accordance with clause 8.1 of this bylaw, no person may undertake or allow any other person to undertake on their behalf, a trading activity, event or organised licenced premises tour in a public place without permission obtained under this bylaw from Council.
9.2Permission issued under this bylaw is subject to terms and conditions that Council deems appropriate in respect of the proposed trading activity.
9.3Terms and conditions specified in a permit may include conditions identified in Part 3 of this bylaw and may also include, without limitation:
(a)the name of the permit holder;
(b)the duration of the permit;
(c)the location to which the permit applies;
(d)the type of trading activity allowed by the permit; and
(e)the hours of trade allowed by the permit.
9.4Permit holders must comply with the terms and conditions of the permit.
(d)under cl 10.1, it incorporated “trading activities” as one of the activities for which Council may grant permissions.
(e)it provided, through cl 11, the power to allow Council to control where busking, trading or charity street collection can take place. That clause reads as follows:
11 Permitted activity areas
11.1Unless specific permission has been granted, the holders of any permission may only busk, trade or undertake charity street collection in the places or areas approved by Council.
11.2Council may by resolution declare:
(a)any public place or part of a public place to be an area where busking, trading or charity street collection activity is permitted or prohibited;
(b)any public place or part of a public place to be an area where busking, trading or charity street collection activity is restricted or only permitted in the specific location;
(c)a busking, trading or charity street collection activity to be prohibited for any period.
(f)the conditions which applied to busking activities which were authorised in public places, was extended to include pop-up stalls and charity street collections. Clause 12 reads as follows:
12 Conditions for busking, pop-up stalls and charity street collection
12.1A person may busk, operate a pop-up stall or undertake charity street collection in a public place provided all of the following conditions are met:
(a)they have registered their details in the Council online register, are displaying proof of registration, and have agreed to comply with all conditions;
(b)they agree to busk, operate a pop-up stall or undertake charity street collection in a permitted area;
…
(g) they do not remain at the same location for longer than one hour, unless there is a 30 minute break;
…
12.2Busking, pop-up stalls and charity street collection that cannot meet all the conditions in cl 12.1 of this bylaw must not occur except as authorised by:
(a)permission obtained prior to commencing busking, pop-up stall or charity street collection activity under clause 10 of this bylaw; or
(b)a resource consent issued by Council.
The Council’s 17 April 2025 Resolution
[16] Although the Bylaw was made by the Council on 10 August 2023 and commenced on 1 September 2023, it appears the full impact of the Bylaw on street traders took some time to filter through. Ms Burton says that she first became aware that the Bylaw impacted on her ability to trade, when, in December 2023, a Council enforcement officer approached her advising her she was required to display an Activities in Public Places permit to continue operating her mobile food cart. She says she was surprised as she had not been asked to provide any such permit previously and she says the changes were not in the Statement of Proposal or the draft Bylaw which had been circulated for consultation. She says she then suffered a medical event which precluded her from trading for several months. She had applied to register (presumably under cl 12.2), but, by August 2024, she still had not received her registration permit.
[17] It was then that she looked more carefully at the provisions of the Bylaw as enacted and compared them with the Statement of Proposal and draft bylaw and it became clear that they diverged in “substantive and meaningful ways from what was originally proposed for consultation”.
[18] In 2024 Ms Burton had further communications with the Council, with Council staff saying she was non-compliant with the Bylaw, including by not displaying a permit.
[19] She then says that in January 2025 she received an email advising that the Council had been working on a report concerning lakefront activities and the Council was well advanced in preparing a proposal to effectively ban all vending activity in the area. A meeting scheduled to discuss the activities was scheduled for 17 April 2025. Ms Burton challenges the decision made at the 17 April meeting because it relied on the power contained in cl 11.2 of the Bylaw, a provision she challenges, saying it was not fairly disclosed in the Statement of Proposal.
[20] In the report prepared by Ms Isobel Logez for the April Council meeting, Ms Logez explains that there has been a clear increase in traders operating along the Queenstown Lakefront. She says that under the 2016 Bylaw, large scale monitoring and enforcement had not been warranted. However, between November 2023 and January 2024 Council staff would observe between six to 22 traders occupying the 150 metre stretch of trading area along the Queenstown Lakefront during that period. Furthermore, the pop-up stall holders were breaching the requirements for separation, duration and displaying of a valid permit.
[21] In her report Ms Logez said that feedback from the traders themselves identified the following issues:
(a)it was difficult to move every hour due to the manoeuvrability of their stalls, and their concerns with health and safety, for example in moving hot cooking equipment;
(b)as there is no cap on the number of permits issued, there is congestion on the Queenstown Lakefront;
(c)there is negative and competitive behaviour between stall holders;
(d)there is a lack of other available land for them to operate in;
(e)operating in other permitted activity areas caused negative interactions with surrounding commercial premises; and
(f)the stall holders relied on trading as a full-time occupation.
[22] Ms Logez’s report put to the Council four options to address the concerns identified. All of them either prohibited trading on the Queenstown Lakefront, or prohibited trading in all three areas in the Queenstown town centre. The resolution which was ultimately adopted by Council read as follows:
Adopt by resolution under cl 11.2(a) of the Activities in Public Places Bylaw 2023 the prohibition of pop-up stalls for one year in the Queenstown Lakefront, with existing pop-up stall permit holders able to continue to trade until their permit expiry date, noting that any existing permits will be extended to expire no sooner than 31 August 2025.
[23]The resolution was carried unanimously.
The application for judicial review
[24] It is not necessary to summarise every ground advanced by the plaintiffs in their application for judicial review of the Council’s decision to adopt the Bylaw. I also accept, as Ms Davenport for the Council points out, that Ms Burton’s affidavit raises more issues than are set out in the statement of claim. I have afforded the plaintiffs some latitude by considering the concerns they raise more broadly.
[25] The key complaints the plaintiffs raise about the process by which the Council adopted the Bylaw and which are relied on to bring this application for interim relief, are as follows:
(a)The Council’s Statement of Proposal misrepresented the scope and nature of the changes introduced by the Bylaw. It failed to disclose that the Bylaw would introduce a power to prohibit trading and busking because it only said that Council would “specify certain public places or parts of public places where trading activities and busking are permitted” whereas the draft bylaw itself stated, at cl 11.2, that Council could declare any public place “approved or prohibited”.
(b)The Statement of Proposal falsely stated that the 2016 Bylaw required prospective buskers as well as pop-up stalls and charity street collectors to register via an application form on Council’s website whereas in fact,
under the 2016 Bylaw, only buskers were required to register and pop-up stalls and charity collectors were not.
(c)The Statement of Proposal ambiguously stated that “the designation of permissible locations … sit outside the bylaw” when, since 2016, the Council had consistently relied on a permitted area map and the Statement of Proposal was unclear as to who designates these sites or how feedback on them would be gathered.
(d)The Statement of Proposal represented that the existing registration system (for busking) and trading conditions would not change materially because it stated “it is not proposed to change this system” in respect of busking registration. She says there was no indication that pop-up stalls, street food vendors, or charity collectors faced impending bans or prohibitions, or would require to be registered.
(e)Other important changes were made, in particular, by expanding cl 8 so that it governed not just busking, but also pop-up stalls and charity street collections, requiring them either to register with the Council and agree to comply with the conditions in cl 12.1 of the Bylaw or, if they wished to operate outside the conditions listed in cl 12 (including the permitted areas), to apply to the Council for permission to operate in accordance with Part 3 of the Bylaw. Ms Burton says the conditions in cl 12.1 are ill-suited to mobile traders such as food vendors.
Principles applying to an application for interim relief
[26] The plaintiffs apply for interim orders under s 15(1) of the Judicial Review Procedure Act 2016. That section provides:
… the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
[27]The only relevant provision in subsection (2) in these circumstances is:
(a)prohibiting a respondent from taking any further action that is, or would be consequential on the exercise of a statutory power.
Here, the focus is on the Council’s resolution to prohibit trading on the Queenstown Lakefront pursuant to the impugned Bylaw.
[28] While an order made under s 15(1) may have the effect of an interim injunction “there is no requirement to address such an application exactly as if it were for an interim injunction”.4 The approach generally taken is for the applicant to establish that they have a position to preserve. If they have, then the Court has a wide discretion to consider all of the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting relief.5
[29] I adopt this broad approach to the question of relief in the present case and acknowledging the plaintiffs are not legally represented6 and have had difficulty articulating exactly how the relief they sought came within s 15(1).
Submissions
Submissions for the plaintiffs
[30] Ms Burton adopts the traditional test for the grant of interim relief being whether:
(a)there is a serious question to be tried;
(b)the balance of convenience favours the grant of relief; and
(c)the overall justice of the case supports relief.7
4 Singh v Minister of Immigration [2009] NZCA 50 at [26], citing Carlton and United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
5 MKD v Minister of Health [2022] NZHC 67, [2022] NZFLR 47 at [47], citing Minister of Fisheries v Anton’s Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3].
6 I granted leave to Ms Burton at the outset of the hearing to represent not just herself but the Society as well.
7 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).
[31] Here, she says there are “serious and arguable” issues regarding the process by which the Bylaw was adopted. In particular, she focuses on the fact the Council presented the trading permit requirement as if it had always existed when in fact it was newly introduced. By misstating the effect of the proposed Bylaw the Council failed to properly consult on the true changes proposed. For this reason, the Council should be restrained from enforcing the trading permit regime as it was arguably unlawfully introduced.
[32] In terms of the balance of convenience, Ms Burton says that if interim relief is refused (by which Ms Burton is referring to the gradual prohibition of traders from the Lakefront), vendors will face “immediate and irreparable harm including that families will lose income and stability.” In contrast she says that the Bylaw has not previously been enforced and no pressing issues of public safety or welfare have arisen.
[33] In terms of the adequacy of damages, Ms Burton says that once a business is forced to close, the loss of goodwill, income and viability is irreversible.
[34] Turning to the overall justice, she says it is in the interests of justice to preserve the status quo until the lawfulness of the Bylaw is resolved.
Submissions for the Council
[35] The Council points out that there has been a proliferation of street vendors at the Lakefront and repeated and widespread contraventions of the conditions that apply to street trading activity. This is why the Council used the power in the Bylaw to prohibit street traders from the Lakefront for one year. Ms Davenport points out that street vendors are still able to register and seek permits in other locations.
[36] In terms of the Council’s decision to invoke cl 11.2 of the Bylaw to prohibit trading on the Lakefront, Ms Davenport points out that the power to prohibit trading in certain areas had already gone through a special consultative procedure by virtue of the process for making the Bylaw. There was no need to commence a further special consultative procedure before adopting a resolution to permit or prohibit activities in a specific public area under cl 11.2.
[37] In considering whether there are grounds for an interim injunction to preserve the position of the applicant, Ms Davenport submits first, that there is no serious issue to be tried. In that regard, she focuses on the applicant’s statement of claim, rather than the more wide-ranging concerns raised in the affidavit of Ms Burton.
[38] In responding to the issues raised in the statement of claim, Ms Davenport points out the draft 2023 Bylaw clearly included the provision at cl 11.2 allowing Council, by resolution, to prohibit a trading activity for any period.
[39] In terms of the criticism by the applicants that the power conferred by cl 11.2 is excessively broad, she points to s 13 of the Bylaws Act 1910 which expressly permits matters to be subsequently determined by the local authority making the Bylaw, as long as the discretion left to the local authority is not “so great as to be unreasonable”. Here, Ms Davenport says the subject matter of cl 11.2 is limited in scope to busking and trading activities, in particular public spaces. It is the sort of decision making power that one might reasonably expect the Bylaw to contain and to be reserved to democratically elected members of Council in a publicly accessible forum.
[40] She rejects the claim that the requirement that street vendors relocate every hour which is contained in cl 12.1(g) is irrational, pointing out that in any event, under cl 12.1, the street vendors may obtain a permit under cl 12.2 can obtain a permit if they cannot meet all the conditions of cl 12.1. Again, she says there is no serious issue to be tried.
[41] In terms of the plaintiffs’ claim that they had a legitimate expectation that the Bylaw would be made in accordance with fair process, and would not introduce new restrictions without consultation, Ms Davenport points out that the Bylaw was adopted in accordance with the special consultative procedure, and this undermines the plaintiffs’ claims of unfair procedure or retrospective prohibitions.
[42] Finally, in respect of the claimed breach of the New Zealand Bill of Rights Act (NZBORA), Ms Davenport says that the Council’s actions in controlling and
managing activities on public land are legitimate limitations on any purported right in accordance with s 5 of the NZBORA.
[43] Turning to the balance of convenience, Ms Davenport points out that the Council’s resolution under cl 11.2 does not provide a blanket ban across the Queenstown district. It is a narrow prohibition on trading activities at a specific location, being the Queenstown Lakefront. Furthermore, the Council adopted a “soft approach” to implementing the prohibition by allowing street vendors to continue operating until their existing registrations or permits expire. She points out there are other designated areas in the District where the applicants can trade, and they can trade on private land. In addition, the applicants can seek a permit under cl 12.2 if they cannot meet the requirements of cl 12.1 and wish to operate in an area that is not permitted.
[44] In contrast, the relief initially sought by the plaintiffs (which was that the Bylaw could not be enforced at all) was “extraordinary in scope” and would completely undermine the Council’s ability to regulate any control over such activities in public places to the clear detriment of the public. Furthermore, the plaintiffs do not come to the Court with “clean hands”. It is because of the extent of contraventions by traders with the terms of their permits and registrations, that the temporary prohibition was agreed to by Council. Granting relief would only prolong the problematic and non-compliant state of affairs which the Queenstown community through its democratically elected representatives, objects to.
Is an interim order necessary to preserve the plaintiffs’ position?
[45] The first issue to determine is whether Ms Burton and other society members are able to establish that an interim order is necessary to preserve their position. This is a threshold question which has previously been interpreted liberally by this Court.8 It requires me to establish what the position was before the Bylaw was introduced, before I can consider whether it is necessary, in all the circumstances, to preserve that position. In that regard, I focus on the two issues which the plaintiffs raise. These are
8 Greer v Chief Executive of Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [24]; and Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107 at [52]–[54].
the need for permits or registration and the power to prohibit trading in areas that were previously permitted.
Permits and registration
[46] There is some dispute about what the position was prior to the enactment of the Bylaw in terms of permits. The Council considers there was an existing requirement for permits for pop-up stalls, noting that, in the Statement of Proposal, it was stated “The current Bylaw requires prospective buskers (as well as pop-up stalls and charity street collectors) to register via an application form on Council’s website” and said “It is not proposed to change this system.”
[47] However, despite the Council’s assertion that pop-up stall holders were required to obtain permits, this is contradicted by other statements in the Statement of Proposal, which include that the Council was amending the existing Bylaw to “ensure trading activities are separately covered in the Bylaw instead of just in connection with an event”. Furthermore, it was acknowledged in the Council report prepared for the Council meeting on 10 August 2023, that “the wording of the bylaw” was “ambiguous” as to whether it applied to all three of buskers, pop-up stall holders and charity street collectors. That then was reiterated at paragraph 31 of the report where it said that one of the recommendations from the hearing panel was that wording should be added to the bylaw “to clarify that the registration regime and conditions apply to buskers as well as pop-up stalls and charity street collectors”, albeit it went on to say that would align with the “current practice”.
[48] Interestingly, Ms Burton herself, acknowledges that she applied for a permit in October 2021, though says she did so “only because I was directed by Council staff to do so.” She then said that later, on reviewing the 2016 Bylaw, she discovered that no such permit requirement existed for stationary or pop-up food stalls and after her 2021 permit expired, she did not obtain a new one until August 2024, albeit she said she then did so “under stress, duress and coercion.”
[49] The Council has confirmed that there are now 133 permits issued under the Bylaw for pop-up stalls. The Council report prepared for the 17 April 2025 meeting, included a table which showed the increase in the number of permits issued for pop-up
stalls between 2020 and 2024 and noting that pop-up stall permits were valid for one year from date of issue.
Year
Number of Permits issued for Pop-Up Stalls
2020
31
2021
49
2022
52
2023
115
2024
133
[50] It was unclear from Council’s evidence at the hearing whether, when Council staff referred to “permits” (at least after the 2023 Bylaw was enacted), they were referring to permits issued under cl 12.2 or registrations under cl 12.1. In a subsequent affidavit filed at my request, Ms Logez explained that when she used the term “permit” (including in the above table), she was referring to both registrations under cl 12.1 and permits under cl 12.2.
[51] In my view, it is clearly arguable that, under the 2016 Bylaw, there was no requirement for registration or a permit unless a mobile trading activity fell within the definition of an “event” which was a temporary activity arranged by an event organiser. The noticeable increase in the number of “permits” issued by the Council appears likely to be because existing mobile trading activities, such as Ms Burton’s, were now being required to register or obtain a permit, whereas that had not been enforced before because it was not required under the 2016 Bylaw.
[52] However, over two years has passed since the Bylaw came into force in September 2023 and it is apparent that a large number of mobile traders have either registered or obtained a permit from the Council, albeit unwillingly.
[53] I also note that cl 9 of the draft bylaw which was circulated for consultation (whether averted to in the Statement of Proposal or not), was marked up as a new provision and clearly stated that trading activities could not be undertaken “in a public
place without permission obtained under this Bylaw from Council”. The new clause also provided that the permit could include conditions governing, among other things:
(a)the duration of the permit; and
(b)the location to which the permit applies.
This weakens the plaintiffs’ argument that they were not alerted to the fact permits for mobile trading would be required by the Bylaw.
[54] Finally, despite, resistance to the introduction of the permit or registration system, it seems Ms Burton and the other members of the second plaintiff have been able to work within the system. It does not seem to me that stopping Council from enforcing the permit or registration system is needed to protect the plaintiffs’ position. It has not, in and of itself, adversely affected the plaintiffs’ ability to trade.
The power to prohibit mobile trading in public places
[55] In addition to the requirement for mobile traders to register or obtain a permit, the Council also introduced provisions allowing the Council to approve or prohibit areas where mobile traders could operate. The actual position prior to the Bylaw on this issue is less clear. While the 2016 Bylaw had no provision allowing the Council to circumscribe where mobile traders could operate, Ms Burton accepts the Council had published a map of permitted areas prior to the Bylaw which mobile traders operated within. The change which the plaintiffs claim was unexpected is the introduction of the power in cl 11 of the Bylaw to prohibit use of existing permitted areas. It is this power which the Council relied on to make its 17 April decision to prohibit use of the largest and most popular area, being the Queenstown Lakefront.
[56] Ms Logez explains that the permitted areas are not set out in the Bylaw itself and are determined outside the Bylaw review process. When the 2016 Bylaw was reviewed no changes were made to the permitted areas, and they were simply rolled over when the Bylaw was adopted in 2023. She explains that the permitted areas for pop-up stalls referred to in cl 12.1(b) (now that use of the Lakefront is to be phased out) are:
(a)Beach Street, Queenstown;
(b)the Mall, Queenstown;
(c)the corner of Buckingham Street and Wiltshire Street, Arrowtown; and
(d)the corner of Ardmore Street and Helwick Street, Wanaka.
[57] Thus, the Bylaw itself did not change the permitted areas but it allowed, through cl 11.2, the Council to prohibit trading in a formerly permitted area, as it has now done by resolving to prohibit pop-up stalls for one year in the Queenstown Lakefront, with existing pop-up stall permit holders being able to continue to trade until their permit expiry date.
[58] As explained, the interim relief the plaintiffs now seek is that existing pop-up stall permit holders be able to continue to trade on the Queenstown Lakefront, until their application for judicial review has been heard and determined. While that relief is certainly not protecting the status quo prior to the Bylaw, it reflects the reality that two years have passed since the introduction of the Bylaw and mobile traders such as the first plaintiff, have been able to work within the system, albeit they consider the provisions of the Bylaw unsatisfactory and to have been made unlawfully.
[59] As a consequence of the Council’s resolution to prohibit pop-up stalls on the Lakefront area, (albeit respecting existing permits until they expire), there are only two other streets in all of Queenstown in which they are permitted to operate, and two other, very confined areas, one in Wanaka and one in Arrowtown. The only other way mobile traders can operate is by operating on private land or by obtaining a permit under cl 12.2 to operate in a non-permitted area.
[60] In terms of the strength of the plaintiffs’ challenge to the power to prohibit trading, while I accept it is arguable that the Statement of Proposal was misleading as to the extent of the changes which were ultimately introduced, it is also clearly arguable that an intention to give Council the power to permit or prohibit where mobile traders could operate was apparent on the terms of the draft Bylaw itself. Specifically,
cl 11 which was marked up as a new provision clearly stated that Council could determine where trading was permitted or prohibited. Furthermore, the power to determine where trading is permitted was signalled in the Statement of Proposal.
[61] It is unsurprising that the Council would reserve to itself this power and it necessarily implies a power to determine where trading will not be permitted. It is inherently unlikely that if the Bylaw were struck down as invalid, a new Bylaw would not contain a similar provision.
[62] It is also clear the plaintiffs were able to submit on the proposed resolution and the concerns of traders were clearly identified in the report prepared for Council. The resolution was made after consideration of the competing interests which included the concerns about congestion and non-compliance by traders which affected the wider public. The Court would inevitably be reluctant to interfere in such a decision unless the arguments brought by the plaintiffs were compelling.
[63] In that regard, I consider Ms Burton overstates the position when she says that the Lakefront prohibition will force traders out of business, causing them irreparable harm. While the Lakefront is clearly the primary trading area, it is not the only permitted trading area, though the alternatives are limited. More importantly though, traders retain the right to seek permission to operate elsewhere on a case by case basis under cl 12.2. They also can, (and have), set up on private land.
Conclusion
[64] I am satisfied that the plaintiffs have raised a serious question to be tried, looking at the documents they have filed more broadly. However, in light of the passage of time since the introduction of the Bylaw, the identified concerns with proliferation of street traders on the Lakefront who are not complying with conditions of registration, the risk that the public’s rights of access and enjoyment to the waterfront will be interfered with, and the fact mobile traders have other options for trading lawfully, I am not prepared to grant the interim relief as sought.
Result
[65]The application for interim relief is declined.
[66] Costs are reserved. However, the concerns raised by the plaintiffs are genuine and I discourage any application for costs at this stage.
Copies to:
Queenstown Lakes District Council Ms Burton
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