New Zealand Motor Caravan Association Incorporated v Marlborough District Council
[2021] NZHC 3614
•22 December 2021
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2021-406-000015
[2021] NZHC 3614
BETWEEN NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED
Applicant
AND
MARLBOROUGH DISTRICT COUNCIL
Respondent
Hearing: 22 December 2021 Appearances:
P McNamara and O Rego for the Applicant
A C Besier and G A Rainey for the Respondent
Judgment:
22 December 2021
JUDGMENT (No. 2) OF GRICE J
(Relief)
[1] In my interim judgment of 17 December 2021 I indicated that the applicant had succeeded in its application for judicial review on all three causes of action.1 The default area wide ban on freedom (referred to as responsible) camping was adopted as clause 5 of the 2020 MDC Responsible Camping Control Bylaw as a result of a flawed decision making process. The Marlborough District Council (MDC) is in the process of reconsideration of its bylaws under the Freedom Camping Act 2011 (FCA).2
[2] I did not finalise the substantive judgment but left open the matter of relief in order to hear further from counsel. I canvassed options for relief including severance
1 New Zealand Motor Caravan Association Inc v Marlborough District Council [2021] NZHC 3157 Substantive Judgment at [189] – [191].
2 The terms “Responsible Camping” and “Freedom Camping” are used interchangeably. See Substantive Judgment at [5].
NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v MARLBOROUGH DISTRICT COUNCIL [2021] NZHC 3614 [22 December 2021]
of the offending clause or the amendment of the bylaw as well orders under s 17(3) of the Judicial Review Procedure Act 2016, which allows the Court to direct reconsideration by the decision-maker. The act or omission that is to be reconsidered continues to have effect, subject to the terms of any interim order unless it is revoked or amended. In this case it would have been the 2020 bylaws.3
[3] The applicant submitted that it was entitled to relief. It said the effect of leaving the decision in place while it was reconsidered would deprive it of that relief. Both counsel agreed that in the circumstances interim orders preserving the position were not appropriate in this case. I accept that submission in view of the fact that the proposed interim orders would not have the effect of preserving the position of the applicant.4
[4] The applicant would prefer that the bylaws be set aside in their entirety. However it also noted the option of severance of the relevant clause under the Bylaw Act was available in the circumstances. It also submitted that in the absence of any specific resolution of the MDC revoking the 2012 bylaws, those bylaws remained extant should the 2020 bylaws be set aside.
[5] MDC says while there was no specific resolution revoking the 2012 bylaws, that was the intention of MDC when it enacted the 2020 bylaws. Ms Besier submitted it was not necessary to have a specific resolution revoking the previous bylaws. The MDC points out that many of the sites listed for freedom camping under the 2012 bylaws are no longer available due to flood damage and other issues. In addition, if the 2012 bylaws were in force, the effect would be that responsible camping would be allowed throughout the district, rather than restricted to self-contained waste vehicles.
[6] Mr McNamara also pointed out there were offences for which infringement notices could be issued under the FCA. These were introduced in 20175. They included offences such as for the depositing of waste and interfering or damaging the
3 S.17(6)(a) of the JRP Act 2016
4 As is required under s17(5) of the JRP Act by reference to s.15.
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area while freedom camping.6 However, these require enforcement which according to Ms Besier presents some challenges for the MDC.
[7] Both parties indicated that it was open to the Court to sever the offending bylaw clause. That is the districtwide ban on responsible camping (cl 5).7 Counsel indicated that despite earlier reservations I noted in the judgment, their view was that severance was available and would be consistent with the provisions of the Bylaws Act 1910.8
[8] From the MDC’s point of view while its preferred option would be for the whole of the 2020 bylaw to remain in force pending the reconsideration. If that were not possible it would prefer the balance of the bylaw to remain with the default provision in cl 5 severed, rather than some other option. It indicated that this would achieve one of the primary objectives of the Council in adopting the 2020 bylaw: the general restriction on responsible camping throughout the district requiring that self-contained waste vehicles must be used.
[9]Section 17 of the Bylaws Act states:
Part of bylaw only may be deemed invalid
If any bylaw contains any provisions which are invalid because they are ultra vires of the local authority, or repugnant to the laws of New Zealand, or unreasonable, or for any other cause whatever, the bylaw shall be invalid to the extent of those provisions and any others which cannot be severed therefrom.
[10] Having heard from counsel I am persuaded that the Bylaws Act enables the severance of the offending default provision in this case. As I have noted the Council has clarified that one of its primary intentions was the restriction on any responsible camping in the district to self-contained waste vehicles. Such a position is consistent with the evidence of the Council and its final Decisions Report.9 The failures in the
6 S.20 of the Freedom Camping Act.
7 Marlborough District Council Freedom Camping Control Bylaw 2020, cl 5.
8 Substantive Judgment, above n 1, at [196].
9 Hearings Panel of the Marlborough District Council Decision Report of the Hearings Panel to Marlborough District Council and submitters in respect of Draft Marlborough District Council Responsible Camping Control Bylaw 2020 (27 November 2020)
process which I found established related to the area wide default ban rather than the remainder of the bylaw.10
[11] In addition, the severance would not affect the listed sites on which restricted/permitted responsible camping was expressly allowed. Unlike the default ban there had been the appropriate consultation and analysis as required by the FCA in relation to these sites. Ms Besier indicated that such severance supported the public interest in retaining the balance of the bylaw and ensured there was regulation for responsible camping in place.
[12] Ms Besier for the MDC submitted that health and safety considerations were important factors in the MDC’s decision-making. It was these considerations that had led to the requirement of self-contained waste for all vehicles of which were entitled to camp under the FCA bylaw in the district. In addition, the retention of the 2020 bylaw enables the council to close sites where necessary for health and safety reasons. An important feature of the 2020 bylaw was that it allowed the council officers to move quickly in the case of flood, fire or other impending danger to ensure the safety of campers. Again, this provision was not the result of a flawed decision-making process.
[13] The balance of the bylaw apart from cl 5 had been consulted upon and was not subject to the failures in decision making identified in relation to the default ban clause.11
[14] I accept those submissions. I am satisfied it is appropriate to sever the offending provision from the 2020 bylaw and leave the remainder of the 2020 bylaw in force, pursuant to the provisions of s 17 of the Bylaws Act for the reasons indicated by counsel and set out above. My earlier reservations were that severance alone would not be effective and amending the bylaw would not reflect the intentions of the MDC. However I am persuaded severance is appropriate in view of the fact that the bylaw had a number of objectives which would be achieved through the severance of clause 5 (the area wide default ban) and the retention of the balance of the bylaw.
10 Substantive Judgment, above n 1, at [193]-[194].
11 Substantive Judgment above, at n 1 at
[15] This is not a case such as Potts v Invercargill City Council12 where the underlying bylaw would remain invalid despite severance. Nor does the bylaw require rewriting due to an inextricable interconnectedness of the invalid clause from the rest of the bylaw.13 The provisions in the remainder of the bylaw were the subject of proper consultation and appropriate consideration under the FCA. In view of the Council’s objectives for the bylaw, there is no reason that cl 5 cannot be severed from the offending bylaw, as contemplated by section 17.
[16] Ms Besier for the MDC indicated that there may be some other regulatory problems such as Reserves Act 1977 permissions and resource management issues in relation to responsible camping on various roads and sites throughout the district. However, these are matters that are regularly dealt with by local authorities where a number of regulatory provisions apply to the same areas or sites of land. That is a matter for the Council.
Orders
[17] For the reasons given in the substantive judgment, cl 5 of the 2020 Bylaw is invalid and is set aside or severed from the other provisions in the Bylaw. The remainder of the bylaw remains in force.
[18]The final relief is granted by: 14
(a)Setting aside the decision leading to the adoption of the 2020 Bylaw insofar as it relates to the adoption of cl 5.
(b)Setting aside as invalid, cl 5 of the 2020 Bylaw. The remainder of the 2020 Bylaw remains valid and enforceable.
12 Potts v Invercargill City Council [1985] 1 NZLR 609
13 Duffy v Evans [1981] 1 WLR 1522 at 1524.
14 Substantive Judgment at [204] and [205].
[19] In view of those orders it is not necessary to direct a reconsideration of the decision or other relief. For completeness, and as noted in the substantive judgment, the MDC has commenced, of its own volition, a review of the FCA bylaw and will have the benefit of the substantive judgment in that process.
Costs
[20] Counsel sought an extension of time for the filing of submissions on costs although indicated it was likely that costs would be agreed. In the application for costs together with supporting submissions should be filed and served on or before 4 February 2022. Any reply should be filed within a further five days.
Grice J
Counsel/Solicitors:
Simpson Grierson, Auckland Tasman Law Ltd, Nelson
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