Gwynn v Napier City Council
[2018] NZHC 1943
•1 August 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2018-441-00001
[2018] NZHC 1943
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
the Shop Trading Hours Act 1990
BETWEEN
ROBIN GWYNN
Applicant
AND
NAPIER CITY COUNCIL
Respondent
Hearing: 9 July 2018 Counsel:
M J E Williams for applicant M B Lawson for respondent
Judgment:
1 August 2018
RESERVED JUDGMENT OF DOBSON J
Contents
Introduction [1]
The legislative context [5]
The SCP [14]
The Council’s process [18]
Grounds for judicial review [26]
Intensity of review [30]
First ground: inadequate consultation process [39]
Second ground: failure to consider a mandatory relevant factor [66]
Third ground: irrationality [77]
Fourth ground: taking into account an irrelevant consideration [83]
Discretion on relief [86]
Result [91]
Costs [92]
GWYNN v NAPIER CITY COUNCIL [2018] NZHC 1943 [1 August 2018]
Introduction
[1] This application for judicial review challenges the adequacy of the process adopted by the respondent (the Council) in considering whether it would promulgate a policy about Easter Sunday trading by retailers within its territorial area. Such a policy would be an exception to the default position under the Shop Trading Hours Act 1990 (STHA) which, subject to certain exceptions, generally prohibits Easter Sunday trading.
[2] The applicant (Dr Gwynn) is a retired university professor, a former Napier City councillor and a committed Christian closely connected to the Anglican Church in Napier. Acting in his personal capacity, he opposed the adoption of a policy that would permit trading on Easter Sunday. At the time, he objected to the consultation process on the basis that it afforded an inadequate opportunity for those affected by, or having an interest in, such a decision to participate.
[3] After the Council resolved in February 2017 to adopt a policy permitting trading on Easter Sunday, Dr Gwynn promoted a petition calling on the Council to reconsider the issue after affording fuller opportunities for submissions from interested parties. When the petition was rejected by the Council, he commenced this application for judicial review in January 2018.
[4] Before considering the grounds for judicial review, it is appropriate to explain the legislative context in which the Council came to consider the issue and make its decision on the relevant policy. It is also appropriate to review the evidence on the process adopted by the Council leading to the decision under challenge.
The legislative context
[5] Dr Gwynn treats the position prior to Saturday trading legislation in 1980 as affording all New Zealanders “over a hundred common break days in the year”. Once the prohibition on trading on Sundays was removed in 1990, New Zealanders were left with “just three and a half common break days in the year”, which Dr Gwynn argued is far fewer than in most western countries.
[6] Parliament has made numerous attempts to rationalise various forms of exemption from the prohibition on trading on Easter Sunday. Hansard records Denise Roche as describing the Shop Trading Hours Amendment Bill 2015 as “about the tenth bill on Easter Sunday trading that has come before the House since 1996”.1
[7] The fresh initiative in the 2015 Bill was to pass the power of decision-making about Easter Sunday trading from Parliament as a national issue to local authorities as an issue to be resolved within their own communities. The Bill retained the existing prohibition on trading on Christmas Day, Good Friday, Easter Sunday and ANZAC Day until 1.00 pm, subject to the prospect that local authorities could decide to permit trading on Easter Sunday within all or defined parts of their territory.2
[8] The Bill as introduced provided a power for local authorities to make bylaws to permit shops to open on Easter Sunday. The Bill was referred to the Commerce Select Committee, but was reported back to the House without a recommendation on whether it should be passed or not because votes on the Select Committee were tied.3
[9] It is apparent from the Parliamentary materials, including the report of the Select Committee, that local authorities were generally less than enthusiastic about having the decision-making power on the vexed issue of Sunday trading devolved to them by Parliament. In particular, widespread concern was expressed at the cost and legal risk of promoting bylaws. To address that risk, National Party members on the Select Committee recommended that the power to make bylaws to permit Easter Sunday trading be substituted with a power for territorial authorities to have a local policy on Easter Sunday shop trading. The perceived advantage of providing for local policies rather than making bylaws was apparent flexibility and reduction in the legal risk for the local authorities involved.
[10] This recommendation was adopted in the Bill as eventually passed,4 so that the Shop Trading Hours Amendment Act 2016 (the 2016 Amendment Act) introduced a
1 (28 June 2016) 715 NZPD 12203.
2 Shop Trading Hours Amendment Bill 2015 (81-1).
3 Shop Trading Hours Amendment Bill (81-1) (Select Committee report) at 2.
4 Shop Trading Hours Amendment Bill 2016 (81-2).
new Part 2 into the STHA dealing with trading on Easter Sunday. The new Part 2 included:
5A Territorial authority may have local Easter Sunday shop trading policy
(1)A territorial authority may have a local Easter Sunday shop trading policy to permit shops to open on Easter Sunday in an area comprising—
(a)the whole of its district; or
(b)any part or parts of its district.
(2)A local Easter Sunday shop trading policy under subsection (1) may not—
(a)permit shops to open only for some purposes; or
(b)permit only some types of shops in the area to open; or
(c)specify times at which shops may or may not open; or
(d)include any other conditions as to the circumstances in which shops in the area may open.
…
[11] Section 5B required any territorial authority to use the special consultative procedure (SCP) – defined in the Local Government Act 2002 (LGA) – in deciding whether to adopt a local Easter Sunday shop trading policy (or to amend or revoke such a policy). Section 5C required any territorial authority adopting a local Easter Sunday shop trading policy to thereafter review it no later than five years after its adoption.
[12] The 2016 Amendment Act also introduced a separate sub-part, the provisions of which would render unenforceable any contractual obligation requiring an employee to work on Easter Sunday.5 These provisions also confirmed employees’ rights to refuse to work on Easter Sunday and obliged employers to give eight weeks’ written notice of the employer’s request for the employee to work on Easter Sunday. They also prohibited employers from treating any employee adversely because the employee has refused to work on Easter Sunday.
5 These became ss 5F-5L of the STHA.
[13] The 2016 Amendment Act came into effect from 30 August 2016. In mid- October 2016, Local Government New Zealand issued a briefing note to local authorities reviewing the policy options available to local authorities on Easter Sunday trading, and suggesting something of a template for the approach that might be taken to decide on such a policy. The briefing note adverted to advice on timing that had been provided by the Ministry of Business, Innovation and Employment (MBIE), which warned that any local policy to allow shop trading on Easter Sunday in 2017 would need to be adopted by Friday, 17 February 2017 to give employers the eight week period required to notify employees that opening was to occur, and of their right to refuse to work.
The SCP
[14] Part 6 of the LGA contains provisions that apply to local authorities’ planning, decision-making and accountability. It sets out procedures governing decision-making by local authorities and the requirements imposed on their decision-making processes. These include a requirement that local authorities must give consideration to the views and preferences of persons likely to be affected by, or have an interest in, the matter to which the decision relates.6 Sections 82 to 83A, 86 and 87 of the LGA provide principles of consultation and procedures to apply in conducting consultation.
[15]The SCP is provided for in s 83 of the LGA, as follows:
83 Special consultative procedure
(1)Where this Act or any other enactment requires a local authority to use or adopt the special consultative procedure, that local authority must—
(a)prepare and adopt—
(i)a statement of proposal; and
(ii)if the local authority considers on reasonable grounds that it is necessary to enable public understanding of the proposal, a summary of the information contained in the statement of proposal (which summary must comply with section 83AA); and
(b)ensure that the following is publicly available:
6 LGA, s 78(1).
(i)the statement of proposal; and
(ii)a description of how the local authority will provide persons interested in the proposal with an opportunity to present their views to the local authority in accordance with section 82(1)(d); and
(iii)a statement of the period within which views on the proposal may be provided to the local authority (the period being not less than 1 month from the date the statement is issued); and
(c)make the summary of the information contained in the statement of proposal prepared in accordance with paragraph (a)(ii) (or the statement of proposal, if a summary is not prepared) as widely available as is reasonably practicable as a basis for consultation; and
(d)provide an opportunity for persons to present their views to the local authority in a manner that enables spoken (or New Zealand sign language) interaction between the person and the local authority, or any representatives to whom an appropriate delegation has been made in accordance with Schedule 7; and
(e)ensure that any person who wishes to present his or her views to the local authority or its representatives as described in paragraph (d)—
(i)is given a reasonable opportunity to do so; and
(ii)is informed about how and when he or she may take up that opportunity.
(2)For the purpose of, but without limiting, subsection (1)(d), a local authority may allow any person to present his or her views to the local authority by way of audio link or audiovisual link.
(3)This section does not prevent a local authority from requesting or considering, before making a decision, comment or advice from an officer of the local authority or any other person in respect of the proposal or any views on the proposal, or both.
[16] Section 83 is preceded by a number of other provisions governing decision- making and consultation by local authorities. The parties are at odds over the application of these other provisions on consultation when a local authority is undertaking an SCP. Accordingly, relatively lengthy extracts from these provisions become relevant to arguments in the judicial review. The content and context of these statutory provisions is reflected in the following:
76Decision-making
(1)Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable.
(2)Subsection (1) is subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79.
(3)A local authority—
(a)must ensure that, subject to subsection (2), its decision- making processes promote compliance with subsection (1); and
(b)in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.
(4)For the avoidance of doubt, it is declared that, subject to subsection (2), subsection (1) applies to every decision made by or on behalf of a local authority, including a decision not to take any action.
(5)Where a local authority is authorised or required to make a decision in the exercise of any power, authority, or jurisdiction given to it by this Act or any other enactment or by any bylaws, the provisions of subsections (1) to (4) and the provisions applied by those subsections, unless inconsistent with specific requirements of the Act, enactment, or bylaws under which the decision is to be made, apply in relation to the making of the decision.
(6)This section and the sections applied by this section do not limit any duty or obligation imposed on a local authority by any other enactment.
77Requirements in relation to decisions
(1)A local authority must, in the course of the decision-making process,—
(a)seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b)assess the options in terms of their advantages and disadvantages; and
(c)if any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga.
(2)This section is subject to section 79.
78Community views in relation to decisions
(1)A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.
(2)[Repealed]
(3)A local authority is not required by this section alone to undertake any consultation process or procedure.
(4)This section is subject to section 79.
79Compliance with procedures in relation to decisions
(1)It is the responsibility of a local authority to make, in its discretion, judgments—
(a)about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and
(b)about, in particular,—
(i)the extent to which different options are to be identified and assessed; and
(ii)the degree to which benefits and costs are to be quantified; and
(iii)the extent and detail of the information to be considered; and
(iv)the extent and nature of any written record to be kept of the manner in which it has complied with those sections.
(2)In making judgments under subsection (1), a local authority must have regard to the significance of all relevant matters and, in addition, to—
(a)the principles set out in section 14; and
(b)the extent of the local authority’s resources; and
(c)the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.
(3)The nature and circumstances of a decision referred to in subsection (2)(c) include the extent to which the requirements for such decision- making are prescribed in or under any other enactment (for example, the Resource Management Act 1991).
(4)Subsection (3) is for the avoidance of doubt.
…
82 Principles of consultation
(1)Consultation that a local authority undertakes in relation to any decision or other matter must be undertaken, subject to subsections
(3) to (5), in accordance with the following principles:
(a)that persons who will or may be affected by, or have an interest in, the decision or matter should be provided by the local authority with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of those persons:
(b)that persons who will or may be affected by, or have an interest in, the decision or matter should be encouraged by the local authority to present their views to the local authority:
(c)that persons who are invited or encouraged to present their views to the local authority should be given clear information by the local authority concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented:
(d)that persons who wish to have their views on the decision or matter considered by the local authority should be provided by the local authority with a reasonable opportunity to present those views to the local authority in a manner and format that is appropriate to the preferences and needs of those persons:
(e)that the views presented to the local authority should be received by the local authority with an open mind and should be given by the local authority, in making a decision, due consideration:
(f)that persons who present views to the local authority should have access to a clear record or description of relevant decisions made by the local authority and explanatory material relating to the decisions, which may include, for example, reports relating to the matter that were considered before the decisions were made.
(2)A local authority must ensure that it has in place processes for consulting with Māori in accordance with subsection (1).
(3)The principles set out in subsection (1) are, subject to subsections (4) and (5), to be observed by a local authority in such manner as the local authority considers, in its discretion, to be appropriate in any particular instance.
(4)A local authority must, in exercising its discretion under subsection (3), have regard to—
(a)the requirements of section 78; and
(b)the extent to which the current views and preferences of persons who will or may be affected by, or have an interest in, the decision or matter are known to the local authority; and
(c)the nature and significance of the decision or matter, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in, the decision or matter; and
(d)the provisions of Part 1 of the Local Government Official Information and Meetings Act 1987 (which Part, among other things, sets out the circumstances in which there is good reason for withholding local authority information); and
(e)the costs and benefits of any consultation process or procedure.
(5)Where a local authority is authorised or required by this Act or any other enactment to undertake consultation in relation to any decision or matter and the procedure in respect of that consultation is prescribed by this Act or any other enactment, such of the provisions of the principles set out in subsection (1) as are inconsistent with specific requirements of the procedure so prescribed are not to be observed by the local authority in respect of that consultation.
[17] Also of possible relevance is a general provision at the outset of the LGA, which includes the following:
14 Principles relating to local authorities
(1)In performing its role, a local authority must act in accordance with the following principles:
(a)a local authority should—
(i)conduct its business in an open, transparent, and democratically accountable manner; and
(ii)give effect to its identified priorities and desired outcomes in an efficient and effective manner:
(b)a local authority should make itself aware of, and should have regard to, the views of all of its communities; and
(c)when making a decision, a local authority should take account of—
(i)the diversity of the community, and the community’s interests, within its district or region; and
(ii)the interests of future as well as current communities; and
(iii)the likely impact of any decision on the interests referred to in subparagraphs (i) and (ii):
(d)a local authority should provide opportunities for Māori to contribute to its decision-making processes:
…
(2)If any of these principles conflict in any particular case, the local authority should resolve the conflict in accordance with the principle in subsection (1)(a)(i).
The Council’s process
[18] Before embarking on an SCP about the desirability of an Easter Sunday trading policy, the Council took various informal soundings. It engaged with retail associations in Napier, Taradale and Ahuriri, which canvassed their members reportedly on terms that they were surveying interest on behalf of the Council. In addition, the Council engaged with the wider community to survey public opinion by the on-line research tool Survey Monkey, which the Council advertised on its website and on social media via its Facebook page.
[19] Ms Kim Anstey, a policy planner with the Council who was responsible for supervising this work, completed an affidavit describing the steps undertaken. She deposed that 271 people responded to the public survey, with some 56 per cent favouring the proposal to give retailers the option to open on Easter Sunday and 38 per cent being against. The reporting back on soundings taken of businesses indicated that 64 per cent of the 64 people who responded would favour such a policy.
[20] Those responses were deemed sufficient to commit resources to an SCP on the possible adoption of an Easter Sunday trading policy. Council officers prepared a draft of a proposed policy and referred it, with the survey results, to a meeting of the Council’s finance committee on 29 November 2016. The Council resolved that the draft policy should be the subject of public notification through an SCP.
[21] Public notice of the proposal was published in the Hawke’s Bay Today daily newspaper on 5 December 2016, and the 7 December 2016 issue of the weekly Napier Courier that is delivered free of charge to Napier residential addresses. The notice advised that the statement of proposal for the policy and the proposed policy, together
with submission forms, were available at the Napier and Taradale Public Libraries, and accessible on-line on the Council’s website. The notice stipulated that the closing date for submissions was 12 noon on 13 January 2017.
[22] In addition to publishing the public notices, the Council issued a media release on 30 November 2016 and sent emails to a range of potentially interested organisations such as business associations, Hawke’s Bay Tourism and the Chamber of Commerce. Ms Anstey deposed that emails were also sent to the New Zealand Council of Trade Unions’ head office and the First Union. Similar notice was given via the “Napier Community Network”, which Ms Anstey described as a group of approximately 100 community organisations with which the community services team at the Council communicated on matters of interest to the community.
[23] Forty two submissions were received by the deadline. Submitters were split equally, with 21 each in favour of and against the adoption of the proposed policy. The proposal was then the subject of a Council meeting on 22 February 2017. Three of the submitters took the opportunity of speaking to their submissions, including Dr Gwynn. Minutes of the meeting record that the hearing of submissions occurred between 3.05 pm and 3.30 pm, with the councillors’ deliberations beginning immediately afterwards and concluding by 3.43 pm that day. A modest majority of councillors voted for the policy as proposed. Pursuant to that decision, the policy has been in operation for two Easter Sundays, in 2017 and 2018.
[24] In both Dr Gwynn’s written submission to the Council, and in his oral presentation, he protested that the opportunity for consultation was inadequate because the period leading up to and including Christmas was exceptionally busy for the clergy and committed Christians. The clergy and vestry offices were then closed for a summer holiday until about or after the closing date for submissions in mid-January.
[25] After the policy was in place, Dr Gwynn liaised with representatives of the First Union and discovered they had been completely unaware of the proposal, learning of it only after the policy had been adopted by the Council.
Grounds for judicial review
[26] Dr Gwynn pleaded four grounds for judicial review of the Council’s decision. First, he alleged the process adopted was in breach of the Council’s consultation principles in that the Council failed to make itself aware of and have regard to the views and preferences of persons likely to be affected by, or having an interest in, the making of a policy on Easter Sunday trading. Arguably, the Council ought to have recognised the local Christian community and also the First Union (representing employees who would be affected) as persons whose views should be sought and encouraged. Dr Gwynn alleged that the decision was made in breach of the principles in s 14, and the principles of consultation and requirements regarding decision-making in ss 78 and 82, of the LGA.
[27] The second ground of challenge is that the Council failed to consider a relevant factor, namely any, or any adequate, consideration of the views of the Napier Christian community and of affected employees. The statement of claim alleged that the views of both groups were a mandatory consideration for the Council to take into account.
[28] The third ground of challenge alleged that the Council’s process was irrational in that it elected to conduct informal consultation with the retail business community before commencing the SCP whilst deciding not to undertake any similar consultation with trade unions or the Christian community.
[29] The fourth ground of challenge is that the Council was influenced by an irrelevant consideration in settling on the process and especially the timing for reaching its decision. Dr Gwynn alleged the timing of the SCP was dictated by the Council’s desire to have a decision made for retailers before Easter 2017. This was an irrelevant consideration when the Council was under no obligation to reach a decision within that time frame and, by adopting the time frame it did, the Council compromised its ability to comply with the consultation obligations under the LGA.
Intensity of review
[30] For Dr Gwynn, Mr Williams submitted that in considering each of these grounds for review, the context and nature of the criticisms warranted the Court
adopting a relatively intense level of review, and taking a “hard look” at the standard of the Council’s conduct. Mr Williams submitted that because the subject matter was novel, and dealt with matters on which councillors could not be expected to have any expertise, the Court should not afford deference to the Council in making its decision. Further, because the subject matter would have required compliance with rights recognised in the New Zealand Bill of Rights Act 1990 (NZBORA), if the form of decision was addressing the introduction of a bylaw rather than a policy, the analogous obligation to produce a decision consistently with the rights acknowledged in NZBORA also justified the Court in adopting an intense level of review of the decision-making under challenge. Mr Williams submitted the adoption of such a policy potentially conflicted with the right affirmed in s 15 of NZBORA to manifest a person’s religion or belief in worship, observance and practice, and arguably the right affirmed in s 13 to freedom of thought, conscience, religion and belief.
[31] For the Council, Mr Lawson submitted that the subject matter of the Council’s consideration was not different in kind from a diverse range of other topics on which territorial authorities are required to make decisions. For instance, decisions such as those defining locations in which brothels might be located and granting liquor licences similarly engage councillors in a consideration of matters that affect and are intended to reflect community values.
[32] The majority of circumstances in which the Court needs to consider the appropriate level of intensity of review involves challenges to Wednesbury unreasonableness of the substantive decision under challenge. Mr Lawson drew support from numerous judgments dealing with judicial review challenges to the setting of rates.7 In those cases, the courts have acknowledged a hands-off approach to the relatively broad range of approaches that local authorities can lawfully bring to striking rates, where rating decisions have been challenged as unreasonable in the administrative law sense.
[33] To the extent that the relative level of intensity of review may be relevant on the grounds of challenge raised here, such as the alleged irrationality of the pre-SCP
7 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1986] 2 NZLR 545 (CA) and decisions cited in that case.
informal consultation, the approach does not require a choice between the binary options of Wednesbury unreasonableness and a hard look. In Progressive Enterprises Ltd v North Shore City Council, Baragwanath J set out a continuum of approaches to judicial review, which accords greater or lesser intensity in light of a variety of factors, including the nature of the decision and characteristics of the decision-maker.8 In other decisions, Courts have made similar observations, employing terminology such as “variable intensity”.9 Heightened scrutiny, or a hard look, has been justified in cases touching on fundamental human rights concerns.10 Wherever along the continuum the appropriate intensity of review lies, the Court’s function is not to assume the Council’s role but to ensure it has acted lawfully.11
[34] A factor against any intensive level of scrutiny in the present proceeding is that the structure provided by the LGA reasonably leaves the detail of decision-making processes to local authorities. The Court of Appeal has eschewed any function to engage in intense scrutiny of local authority decision-making processes.12
[35] Moreover, the challenges in this case are not about the reasonableness or rationality of the Council’s substantive decision to adopt a policy permitting trading on Easter Sunday. Rather, the challenges are to how the process for arriving at that decision was conducted.
[36] In exercising the Court’s supervisory jurisdiction over the exercise of statutory power involved in that process, it is relevant that the subject matter is highly vexed, and it was the first time the Council had been required to address it for the Napier community pursuant to the 2016 Amendment Act. On the other hand, after numerous attempts to settle entitlements at a national level, Parliament has devolved the power to territorial authorities to provide for Easter Sunday trading on a simple binary basis. Implicitly, the elected representatives of the community are best placed to understand
8 Progressive Enterprises Ltd v North Shore City Council (2005) 11 ELRNZ 421 at [71].
9 See, for example, Mihos v Attorney-General [2008] NZAR 177 (HC) at [98] and Wolf v Minister of Immigration [2004] NZAR 414.
10 See, for example, Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425 at [7].
11 Progressive Enterprises Ltd, above n 8, at [72].
12 Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 at [76].
the interests of the community, and will be answerable to them democratically for making decisions on this topic.
[37] In all those circumstances, I consider a moderately intense level of scrutiny is warranted.
[38] I am not persuaded that the process adopted by the Council needed to have regard to the rights affirmed in ss 13 and 15 of NZBORA. Shops opening on Easter Sunday might be seen by those responsible for church services as creating a distraction for potential members of their congregations, but permitting shops to open is not appropriately characterised as potentially infringing the right to manifest a religious belief. I respect the range of concerns that Christians might raise about retail trading adding to the difficulties for Christian families and wider groups to gather on Easter Sunday as a special day, but that is not pressure of a form that unreasonably intrudes on the relevant rights as affirmed in NZBORA.
First ground: inadequate consultation process
[39] The difference between the parties on the first ground for review is easily defined and depends on a matter of statutory interpretation. From the Council’s perspective, the SCP represents a higher specification, or more thorough process of consultation with the community, for which s 83 of the LGA creates a separate code. The steps in that code arguably replace the consultation procedures that are otherwise required of the Council when consulting in a less intense form. Because of that distinction, the Council did not consider it necessary to comply with features of other consultation processes provided for in, for example, ss 78 and 82.
[40] In particular, the higher level of consultation in an SCP meant the Council had encouraged participation indiscriminately from all sectors of the community. It would have been inconsistent with that approach to comply with the feature of the lesser standard of consultation required by s 82(1)(a) and (b) to identify those persons who might be affected by, or have an interest in, the decision, to provide them with reasonable access to the relevant information, and to encourage them to present their views.
[41] Mr Williams advanced this ground of challenge on the basis that applicable aspects of the more general consultative processes provided for in the LGA also applied to supplement the procedure that a territorial authority had to adopt when conducting an SCP. Relevantly here, the Council was required to identify Christian groups and those representing employees of retailing businesses, to afford those groups reasonable access to relevant information, and to encourage them to present their views.
[42] The inter-relationship between the statutory provisions for the two forms of consultation by territorial authorities has not previously been considered in quite this context.
[43] The terms of ss 76 to 87 of the LGA do not suggest that Parliament intended to create two discrete forms of consultation. Rather, the SCP is treated as an enhanced form of consultation with additional but not distinctly different obligations involved. None of the sections make a distinction that would suggest the process obligations in earlier sections in this part should not apply to the SCP provided for in s 83.
[44] Section 76(1) requires that every decision made by a local authority must be made in accordance with such of the provisions of s 77, 78, 80, 81 and 82 as are applicable. Parliament could not have included s 83 in that stipulation without requiring the SCP to apply to every consultation undertaken by local authorities, so its exclusion from that list of sections is logical. However, given Parliament has not made decisions reached by using the SCP an explicit exception from the scope of s 76(1), the natural meaning extends “every decision” to include those that are arrived at by use of the SCP.
[45] Section 76(3)(b) requires local authorities to ensure that before a “significant decision” is made, s 76(1) has been observed. “Significant decision” is defined in s 5, with “significant” defined as relevantly including a decision that has a high degree of significance. “Significance” means the degree of importance of the decision, as assessed by the local authority, in terms of its likely impact on, and likely consequences for, the district, any persons who are likely to be particularly affected by, or have an interest in, the decision, and the capacity of the local authority to
perform its role. That must logically contemplate, or at least include, those decisions required to be made by using the SCP. There is no justification for interpreting “significant decisions” as relating to some relatively more important subset of decisions for which consultation has to be undertaken under s 82, but excluding those decisions sufficiently important to require the SCP.
[46] Consistently, the stipulation in s 76(4) confirms the scope of s 76(1) as applying to every decision made by, or on behalf of, a local authority. The inclusion of that provision, for the avoidance of doubt, without expressly excluding decisions reached using the SCP reflects an intention that the earlier sections do apply to the SCP under s 83.
[47] The general standards contemplated in ss 77 to 81 inclusive, to the extent they affect the processes for consultation in local authority decision-making, do not distinguish between the requirements for consultation under s 82 on the one hand and s 83 on the other. Their content clearly suggests matters of general application.
[48] The same consistency of parliamentary intent and purpose is reasonably apparent in comparing the principles of consultation specified in s 82 and the requirements for the SCP in s 83. Section 82(5) provides a limit on the application of the principles in s 82(1),13 so they are not to apply where they are inconsistent with specific requirements of the SCP.
[49] Mr Lawson submitted that the distinction between the levels of consultation contemplated respectively by ss 82 and 83 meant that there was a requisite inconsistency when a local authority is applying the SCP under s 83, exempting it from the obligation to observe the principles of consultation in s 82. I do not see any such inconsistency. For example, there is a consistency of interest in the quality of consultation for the local authority to identify groups affected by, or having an interest in, the decision, and encouraging their participation, irrespective of the relative significance to the community of the matter being decided.
13 Set out at [16] above.
[50] There is nothing in the language of s 83 itself which would suggest Parliament intended it to be a distinctly different consultative process rather than an amplification of the type of consultation to which the principles in s 82 would apply.
[51] In Whakatane District Council v Bay of Plenty Regional Council, the Court of Appeal considered consultation provisions that were different in some detail but substantially the same in their overall effect.14 The matter being considered by the respondent regional council was whether it should relocate its head office from Whakatane to Tauranga. At that time, s 78 of the LGA required a local authority to give consideration to the views and preferences of persons likely to be affected by, or have an interest in, the matter at four separate stages of the development and progression of a proposal up to adoption of a decision. The Court of Appeal set aside the regional council decision on the ground that its consultation on the proposal did not comply with the then statutory requirements of s 78 for separate consultation at defined stages of the decision-making process.
[52] Shortly after the Court of Appeal’s decision, s 78 of the LGA was amended to remove the obligation for consultation at four stages in the decision-making process. Apart from repeal of that provision, the relevant provisions in ss 78-82 of the LGA addressing consultation obligations remain the same.
[53] The proposal to shift the regional council’s headquarters constituted an amendment to the long-term community plan, which meant the decision was subject to the SCP. It does not appear to have been contested that relevant requirements in the other statutory provisions addressing non-SCP consultations also applied. The issue was whether the regional council’s consultation processes had been sufficient to discharge its obligation to consult at the first two of the four specific stages then required by s 78(2). Although the application of the non-SCP provisions was not contested, the Court of Appeal’s reasoning reflects a statutory scheme in which it is logical and appropriate to treat the processes provided for in non-SCP consultation (including ss 78 and 82) as applying when a council is undertaking an SCP.
14 Whakatane District Council v Bay of Plenty Regional Council, above n 12.
[54] Mr Lawson cited the observation of Mallon J in an earlier judicial review challenge to this Council’s decision in Friends of Marineland of New Zealand Inc v Napier City Council as supporting the character of the SCP as distinctly different.15 In reviewing the features of s 82 in that decision, Mallon J observed:
[49] There is a separate provision which sets out the requirements on a local authority when it is required by statute to use or adopt “the special consultative procedure”. That is a more prescriptive kind of consultation tha[n] that which may be undertaken in accordance with the principles in s 82. That procedure applies to certain types of decision (not relevant here) or when the local authority chooses to use the special consultative procedure.
[55] I do not accept that the characterisation of the SCP as “a more prescriptive kind of consultation” suggests a distinction that requires the exclusion of the principles of consultation found in s 82. As is apparent from the passage quoted, the Marineland decision did not involve the SCP.
[56] Mr Lawson also cited an observation of the Court of Appeal in Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council as confirming the distinct character of the SCP because of its characterisation as “comprehensive”.16 In that litigation, it was common ground that the local authority had acted illegally in a number of respects in striking a rate to recover the cost of a waste water treatment project. In describing the context of the local authority’s admitted failings, the judgment includes:
[24] … The [LGA] further specifies that a local authority can do certain things … only if they are expressly provided for in its long-term plan. It must use a special consultative procedure when it adopts a long-term plan. That procedure is comprehensive. It requires, among other things, that before the plan is adopted the community must be given a fair representation of what is to be included in it, including information about effects on rates, debt and service levels. …
[57] The observation that s 83 provides comprehensively for the SCP to apply cannot imply that the SCP is distinct from the principles of consultation in the preceding sections of the LGA. The more logical approach is that the SCP is still
15 Friends of Marineland of New Zealand Inc v Napier City Council [2012] NZHC 1070 (citations omitted).
16 Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437.
informed by those principles, about which the description of the statutory context in the Mangawhai decision says nothing.
[58] Neither party cited the decision of Simon France J in Karaka Point Environs Residents Inc v Marlborough District Council.17 I treat that decision as adopting an interpretation of the relationship between ss 82 and 83 of the LGA consistently with that which I prefer.
[59] In that case, the Court found that there had been a breach of the consultation process provided for in s 82 in the course of the council conducting an SCP under s 83. The analysis in the case rests squarely on the premise that the requirements for any consultation process as set out in s 82 apply when conducting an SCP.18 The proposal on which the SCP was undertaken related to alterations to the council’s long-term plan. One aspect of those alterations was to change some 58 properties from one rating category to another, involving a substantial increase in rates for those properties. The summary of the proposal did not specifically reference the rating change, and the affected ratepayers were not specifically notified of the rating change until well into the one month consultation period. In considering deficiencies in the s 83 SCP, the Judge had regard to the obligations to provide notice, information, and an opportunity and encouragement to participate, all of which are derived from s 82.
[60] Simon France J also observed that compliance with the formal obligations in the LGA would not always necessarily discharge all of the local authority’s obligations.19 I agree with that caution. The requirements in s 83 are reasonably treated as appropriate for the majority of SCPs, but may, depending on the circumstances, be inadequate in a particular case. That prospect is relevant in considering the fourth ground of challenge and in considering the Council’s contention that it was only obliged to give one month’s notice when it gave five weeks.
[61] I am accordingly satisfied that the principles of consultation specified in s 82(1) of the LGA do apply when a local authority undertakes an SCP. Given the
17 Karaka Point Environs Residents Inc v Marlborough District Council [2013] NZHC 2577, [2014] NZAR 244.
18 At [81].
19 At [37].
Council’s response to this ground of challenge, namely that it was not required to follow the steps specified in s 82, then its misunderstanding of the scope of its legal obligations suggests there has been a relevant breach.
[62] Mr Lawson’s alternative response to this ground of challenge was that the extent of consultation, and in particular the extent to which the Council publicised the proposal by various means, was sufficient to discharge the extent of the obligations required under s 82(1) of the LGA.
[63] I am not satisfied that the steps taken were sufficient. Apart from Dr Gwynn and a limited number of other individual Christian submitters, numerous representatives of various parts of the Napier Christian community either remained completely unaware of the proposal, or were confronted with it only at a seasonal time when responding to it in a meaningful way was not reasonably possible. Dr Gwynn makes the point that other Christian communities were not contacted, such as the churches for the Pasifika community for whom Easter is a matter of real spiritual importance as a family break. The decision was made without encouraging any input from them when they were among those reasonably identified as being affected by, or having an interest in, the outcome. Similarly with the trade union representing employees in retail outlets, affidavits were filed confirming that they remained ignorant of the proposal until the policy had been adopted and publicised.
[64] If the extent of public communication of the proposal was otherwise adequate, which I do not accept, then the Council could be found separately to have breached its obligation to encourage involvement given its response to Dr Gwynn’s protest. Dr Gwynn conveyed, both in his written submission prior to the hearing on the matter and during his oral presentation, that the time allowed for preparation of submissions had been quite inadequate given the seasonal pressure on church leaders. In a context such as this, declining a request for more time is the antithesis of encouraging that affected sector of the community to participate. The stipulation in s 83(1)(b)(iii) that the period for providing responses to a proposal is to be not less than one month cannot of itself be justification in every case for declining more time. Here, even though five rather than four weeks was provided, a sector of the community that the Council should have recognised was affected by, or had an interest in, the outcome asked for
more time in circumstances where there was a reasonable explanation for their being unable to meet the timetable the Council had imposed. Such circumstances are likely to be relatively unusual, but they demonstrate the point that the statutory minimum may occasionally be inadequate.
[65]Accordingly, breach of the statutory consultation obligations is made out.
Second ground: failure to consider a mandatory relevant factor
[66] Mr Williams argued that because both the Napier Christian community and the trade union representing shop employees were so clearly persons affected by, or having an interest in, the decision, consultation with them and consideration of their views constituted a mandatory consideration for the Council in reaching its view on the proposed Easter Sunday trading policy. Arguably, the decision had been made without having regard to the views of those interested groups.
[67] Mr Lawson rejected the notion that the statutory procedure gave rise to any mandatory considerations at all. Instead, again drawing analogies with judicial review challenges to local authority rate-setting decisions, he characterised the Council as undertaking a broad political assessment. It is one on which the elected representatives have a discretion as to the matters that they took into account.20
[68] It follows from my finding upholding the first ground of challenge that lawful completion of the SCP required the Council to encourage an expression of views by those affected by, or having an interest in, the outcome. That carries with it an implicit obligation to take such views as are communicated into account. That is not to say that there is necessarily any fetter on the Council’s discretion to attribute to such views whatever weight the councillors consider is appropriate, including possibly rejecting them. However, it may be sufficient on this ground of challenge to make out that the decision was made by the Council in the context of ignoring a legal obligation to encourage views from both these interest groups.
20 For example, Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.
[69] In this case, Ms Anstey deposed that emails advising of the SCP on the proposed Easter Sunday trading policy were sent to the New Zealand Council of Trade Unions’ head office and to the First Union. The latter addressee of such an email advised that emails should be sent directly to the national secretary and the central region secretary, which was done. No copies of such emails were exhibited but Mr Williams did not challenge the veracity of Ms Anstey’s description of the forms of communication undertaken.
[70] Instead, Mr Williams relied on the affidavit of Mr Michael McNabb, the regional cross-sector representative for the First Union based in Napier. Mr McNabb denied that the local trade union centre in Napier had received any notification, and he learned there had been such a process only after it was concluded.
[71] Evidence from a former First Union representative, Ms Maxine Gay, was to the effect that had appropriate personnel in that union been on notice, then they would have participated. Ms Gay was, at the time, secretary of the retail, finance and commerce sector of the First Union, and was also part of the national management committee and a member of the national executive of the First Union. In those capacities, her responsibilities included responding to initiatives on shop trading hours and she denied that those with the relevant responsibilities were given notice of the Council’s proposal. She deposed that, had they known, the Union would have participated, which they have in a significant number of other local authority considerations. She outlined by way of example the extent of involvement in consultation on the same issue in Auckland. In that consultation, the local authority had been conscious of the prospect of employers exerting influence over the views expressed by employees. Because of that concern, the local authority had facilitated opportunities for private comment by and on behalf of employees, in the absence of employer representatives.
[72] Accepting Ms Anstey’s evidence, the extent of email communications despatched by the Council would be sufficient to discharge an obligation to provide notice to the First Union. However, this consultation process required more. The Council did not meet its obligation to encourage participation by the First Union, or
other employee representatives, who were clearly a vitally interested sector of the community.
[73] As to notification and encouragement to the Napier Christian community, affidavits in support of Dr Gwynn’s application included two from Napier clergymen. The first was from Mr Bruce Collingwood, senior leader at the Oasis Church in Napier South and leader of the Napier Ministers’ Network, which represents a broad cross- section of the churches in Napier covering some 28 organisations. He deposed that the churches within the network were never given specific notice, nor were they approached by the Council about its intention to change the rules at what he considered to be short notice. He deposed that a large majority of the members of the network were unaware of the Council’s proposal until after the period for submissions had closed. In his affidavit, Mr Collingwood invited an analogy with the situation where the Council was considering a policy to allow trading on ANZAC Day morning, in which circumstance he suggested it would be reasonable to expect that the Returned Servicemen’s Association would be given specific notice and be encouraged to submit on such a proposal. I accept that leaders of Christian communities are in a relevantly similar position in relation to allowing retail trading on Easter Sunday.
[74] The second affidavit was filed by Mr Andrew Hedge, the bishop of the diocese of Waiapu and therefore the leader of the Anglican church in that diocese, which includes Napier. Bishop Hedge learned of the proposal from Dr Gwynn on 15 January 2017, after the period for submissions had already closed. He deposed that the very full commitment to pre-Christmas and Christmas activities in the Christian calendar, and thereafter the taking of a summer holiday, would practically preclude parishes conferring with their vestries and providing a response within the time that was provided for submissions.
[75] It might be argued that Dr Gwynn’s awareness of, and response to, the proposal was a sufficient indication of the views of the Christian community, particularly when combined with the other individual Christian submitters. However, Dr Gwynn’s own evidence records numerous respects in which arguments beyond those that he was able to articulate could have been presented, and with substantially greater weight, if there had been a fuller opportunity for presentation of submissions. Certainly, there was no
conduct on the Council’s behalf that could qualify as encouragement to the leaders of the Christian community to participate in the submission process.
[76] I accordingly find that it was mandatory for the Council to encourage participation by the Christian community and employees’ representatives, and that the Council did not give the requisite encouragement. Nor did it reflect on the absence of fuller responses from the Christian community given Dr Gwynn’s protests at the inadequacy of the opportunity for them, and it did not reflect on the complete absence of submissions on behalf of employees. Although the decision ostensibly reflected on matters of concern to the Christian community and to employees, the Council’s failure to encourage and obtain the views of those parties means its decision was made with insufficient information on those views. Where the Council was on notice that at least one of those interested groups wished to make submissions but had not been able to on grounds the Council could have accepted as reasonable, then the Council proceeded to make its decision without regard to a relevant consideration.
Third ground: irrationality
[77] Mr Williams argued that it was irrational for the Council to undertake pre- consultation and then on-going dialogue with retailers and their representatives, when there was no equivalent testing of attitudes with those who could predictably be seen as being on the other side of the argument. Although framed as an administrative law irrationality argument, the essence of this complaint was the apparent unfairness or discriminatory attitude of the Council in favouring the retailers who would be advantaged by any policy permitting Easter Sunday trading, and ignoring the readily identifiable interests who would be opposed to it.
[78] Mr Williams invited an analogy with the Court of Appeal’s decision in Wellington City Council v Minotaur Custodians Ltd, in which irrationality was alleged in the council’s decision as to the categories of potentially interested persons it notified of the relevant initiative.21 In that litigation, the council was proposing to alter parking restrictions in a particular area and consulted all occupiers of properties in that area, but not absentee property owners. The Court of Appeal rejected the criticism in that
21 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.
case on the basis that those not advised of the proposal had “more subtle and less obvious” interests.22
[79] Mr Williams argued that Christian groups and union representatives were starkly identifiable as the equivalent opposing interest groups to the retailers, which was the group potentially favoured by the proposal, so that the absence of equal treatment was a form of irrationality.
[80] I am not satisfied that the different treatment complained of amounts to irrationality. The Council did have a financial responsibility not to embark on the work and expense involved in an SCP if the retailing community did not demonstrate sufficient interest in opening on Easter Sunday in any event. Pre-consultation with them was therefore a valid step on its own, not triggering an obligation to afford equal treatment to the interest groups likely to be opposed to the initiative.
[81] Dr Gwynn did make a valid complaint that once the Council decided to embark on the SCP, it kept the retailing interests appraised in a way that afforded them better notice of the opportunity to make submissions. However, that cannot constitute a ground for finding the overall process inadequate. That complaint is better considered in terms of the appropriate level of consultation and encouragement afforded to Christians and employees, a matter already addressed under the previous two grounds.
[82]Accordingly, I am not persuaded that the irrationality ground can be made out.
Fourth ground: taking into account an irrelevant consideration
[83] The last pleaded criticism of the Council’s process is that its decision on timing was influenced by a desire to provide a decision for Napier retailers sufficiently before Easter 2017 to enable them to act on it. Mr Williams argued that the timetable for progressing consideration of the policy was dictated or materially influenced by the wish to have the matter resolved in time for Easter 2017, and that this was an irrelevant consideration when the Council’s focus should have been on compliance with the
22 At [64].
principles of consultation in s 82 of the LGA and the s 14 principles relating to the conduct of local authorities.
[84] I am satisfied that the timeline recommended by Council officers was to accord with the deadline identified in MBIE’s advice.23 It is tolerably clear that the Council was aware that it was not under any obligation to have produced a decision in time for it to apply to Easter 2017. Rather, it was perceived as desirable to have the issue resolved, if it was possible to do so.
[85] I am not satisfied that the Council rejected Dr Gwynn’s request for more time for affected persons to make submissions because of a view that it was necessary to complete the decision-making process within the timeline originally identified. Given the Council’s misapprehension that its obligations in conducting an SCP did not involve compliance with the principles for consultation in s 82, it is equally likely that it considered the steps it had undertaken were sufficient to comply with its statutory obligations. In those circumstances, it is inappropriate to characterise the Council’s interest in completing its decision-making process within the timeline originally identified as an irrelevant consideration in settling on the process it adopted. Rather, its failure to accede to the request which it should have done to discharge its s 82 obligation results from a misunderstanding of the extent of its legal obligations to consult. It is not separately made out as an administrative law error in the nature of having regard to a timing imperative as an irrelevant consideration.
Discretion on relief
[86] If the Council was found to have made justiciable error, Mr Lawson submitted that I should exercise my discretion not to grant any relief.
[87] I have found that two grounds for judicial review have been made out. They reflect errors in a statutory consultation process of a type where the Court would generally not exercise its discretion to withhold relief. In considering the discretion, it is appropriate to have regard to the relative gravity of the errors, the practical value
23 See [13] above.
to the applicant of the relief sought, and whether granting relief would affect the interests of third parties.
[88] Mr Lawson submitted that the policy has now been in operation for two Easter Sundays, so that a pattern of behaviour by retailers would be unnecessarily disrupted. He argued there was no evidence that Christian communities had been adversely affected by the policy, nor was there such evidence in relation to the circumstances of retail employees. The STHA requires the policy to be reviewed no more than five years after its adoption, and directing a fuller consultation process the next time it is to be undertaken should be sufficient to address any error identified.
[89] In this case, there was not a complete failure to conduct consultation. The errors are rather inadequacies in the way it was carried out. I do not accept, however, that the errors were merely technical. The approach to local authority governance in s 14 of the LGA and the detail of the consultation principles in s 82 attribute a measure of importance to effective participation by those affected by a decision. Councillors, as elected representatives, are expected to be sensitive to the democratic process of consultation and here the decision-makers were short-changed in that regard. Correspondingly, the rights of potential submitters were infringed so that the errors are indeed more than technical.
[90] After an evaluation of the relative importance of the interests of those retailers who have elected to open on either or both of the last two Easter Sundays, weighed against the interests of those opposed to the policy who were unable to effectively participate in consultation, I would prefer the latter interests. There is clearly time for the Council to conduct a further SCP before Easter 2019. Dr Gwynn readily accepts that if the SCP is undertaken properly but the same decision is arrived at by the Council, then he and his supporters can have no complaint. Conversely, if the Council reaches the contrary view on an Easter Sunday trading policy after encouraging those affected by, or having an interest in, the outcome and hearing all the submissions, then a grant of relief in this proceeding would be vindicated.
Result
[91] I am satisfied that this is not a case in which to withhold relief and I accordingly declare the Council’s decision to be invalid and set it aside.
Costs
[92] Dr Gwynn is entitled to costs, to be calculated in accordance with scale 2B, plus recoverable disbursements.
Dobson J
Solicitors:
Carlile Dowling, Napier for applicant Lawson Robinson, Napier for respondent
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