UNDER the Judicial Review Procedure Act 2016 IN THE MATTER of an application for review of a decision to adopt the Freedom Camping Bylaw 2021 NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED AND QUEENSTOWN LAKES...

[2024] NZHC 2729

IN THE HIGH COURT OF NEW ZEALAND

INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA

WAIHŌPAI ROHE

CIV-2023-425-2

[2024] NZHC 2729

UNDER	the Judicial Review Procedure Act 2016
IN THE MATTER	of an application for review of a decision to
adopt the Freedom Camping Bylaw 2021
BETWEEN	NEW ZEALAND MOTOR CARAVAN
ASSOCIATION INCORPORATED
Applicant
AND	QUEENSTOWN LAKES DISTRICT
COUNCIL
Respondent

Hearing:	10 June 2024
Counsel:	P J Page and S R Wells for Applicant
S D Campbell and B E McIntosh for Respondent

Zealand Motor Caravan Association Incorporated (NZMCA). QLDC in December

2021 revoked the 2019 Bylaw. At the same time, QLDC resolved to adopt the

Freedom Camping Bylaw 2021 (the 2021 Bylaw).

1. Under the 2021 Bylaw, every local authority area in the District not identified

as “restricted” was prohibited for the purposes of freedom camping.

1. The effect of the 2021 Bylaw was to create in the District one restricted

freedom camping area, situated at Red Bridge, Luggate.

The NZMCA

1. The NZMCA represents the interests of some 116,000 members.

2. Its objects include the safe and courteous operation of certified self-contained

motor caravans in New Zealand. Its members want the NZMCA to protect their ability

to freedom camp in certified self-contained vehicles. The NZMCA lobbies local

authorities and the Department of Conservation to accommodate visiting motor

caravaners, including by welcoming responsible freedom campers through permissive

policies and bylaws.

Issues

1. The NZMCA under the Judicial Review Procedure Act 2016 (JRPA) seeks

judicial review of the 2021 Bylaw on the basis the considerations which informed the

content of the 2021 Bylaw were flawed in an administrative law sense.

1. The NZMCA pleads five causes of action which I summarise:

(a) QLDC had regard to the protection of the economic values enjoyed by

private residential and commercial properties and the protection of the

amenity values enjoyed by such properties, which are irrelevant

considerations;

(b) by reason of the reliance on irrelevant evidence (the subject of the first

cause of action) and a failure to assess all residential sites at which freedom camping was prohibited, it followed there was insufficient

evidence to satisfy QLDC that the 2021 Bylaw was necessary, with the

consequence the bylaw was ultra vires;

(c) QLDC did not fulfil its obligations of consultation under the Local

Government Act 2002 (LGA) because:

(i) QLDC’s Statement of Proposal (SOP) contained irrelevant

information; and

(ii)        the bylaw notified for the purpose of consultation was

materially different to the 2021 Bylaw (as adopted);

(d)	QLDC failed properly or at all to consider whether the 2021 Bylaw is:
(i) the most appropriate and proportionate way of addressing

perceived problems in particular areas; and

(ii)        not inconsistent with the New Zealand Bill of Rights Act 1990

(NZBORA),

with the consequence the 2021 Bylaw is ultra vires;

(e) on the facts the 2021 Bylaw was an inappropriate and disproportionate

response to the perceived problems in particular areas, with the

consequence the bylaw is ultra vires.

1. QLDC by its defence denies the allegations in relation to all five causes of

action and, by way of affirmative defence, pleads (should the Court find there has been

any error as alleged) the NZMCA failed to diligently pursue a review application,

thereby causing QLDC prejudice.
Evidence

1. Three affidavits were filed:

(a) Alan Johnson, a senior policy analyst with the NZMCA, with a

professional background in town planning, economics and public

policy, qualified himself as an expert. His evidence related particularly

to the criteria under s 11(2)(a) of the Act (below at [31]), an analysis of

the evidence available to QLDC, and identification of sites not assessed

by QLDC (or its consultant Xyst Ltd (Xyst));

(b) Jeannie Galavazi, QLDC’s Senior Parks and Reserves Planner who

gave evidence in relation to QLDC’s handling of freedom camping

since the Act took effect on 2011, the previous bylaws including the

2019 Bylaw, and the Council’s process in relation to the 2021 Bylaw.

She produced a comprehensive record of relevant documents;

(c) Bruce Lochore, the NZMCA’s chief executive who gave evidence

about the role, membership and policies of the NZMCA, including

involvement with freedom camping issues and engagement with QLDC

in particular. He gave evidence explaining the timing of the NZMCA’s

review application in response to QLDC’s pleading there had been

unreasonable delay.

1. Mr Campbell for QLDC, submitted the evidence of Mr Johnson was

inadmissible for three reasons:

(a)	lack of independence/partiality;
(b)	speculation and a lack of probative value; and
(c)	evidence relating to matters beyond his expertise and unsupported by

appropriate methodology.

The evidence was provisionally admitted. The objections, upon agreement of counsel, were the subject of submissions at the hearing. It transpired as indicated by the reasons

that follow, the Court’s determination of the substantive issues did not call for

reference to much of Mr Johnson’s challenged evidence. Where I came to refer to

aspects of his evidence (below at [183]), the evidence by its nature was plainly

admissible. Had I needed to rule on particular aspects of Mr Campbell’s objections, I

would have found:

(a) Mr Johnson’s involvement at the NZMCA goes to weight rather than

admissibility;

(b) Mr Johnson’s opinions as to what Xyst or QLDC may have been

thinking or concluding were not substantially helpful and were

inadmissible; and

(c) Mr Johnson’s physical description of sites from his personal knowledge

was admissible.

Judicial review

1. I adopt the observation of Simon France J that it remains a valid proposition

judicial review was intended to be a comparatively simple process of “testing that

public powers have been exercised after a fair process, and in a manner which is both

lawful and reasonable”.[1]

[1]        Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13].

1. The focus of judicial review is on process, not outcome.[2]

   [2]        Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2014] NZHC 2810 at

2. Recourse for dissatisfaction as to substantive outcomes is to be achieved

through the political and democratic process.[3]

[3]        Van Duyn v Helensville Borough Council (1984) 5 NZAR 55 (HC) at 64; New Zealand Public

[16] For QLDC, Mr Campbell referred to the degree of deference the Courts have adopted when reviewing decisions that involve high policy content. As Mr Campbell put it, “Courts are slow to interfere with policy decisions of local authorities”. The

approach in question is sometimes referred to as a “review on a light-handed” basis or

with a “tolerant eye”.[4]

[4]        See the discussion in cases referred to in Matthew Smith New Zealand Judicial Review Handbook

1. As identified by Mr Campbell, the need for the Courts to take account of the

“wide” degree of policy involved in particular decisions has been repeatedly

recognised by the Court of Appeal. For example:

(a) (in relation to a challenge to a council’s rate-fixing decision) — “there

are constitutional and democratic constraints on judicial involvement

in wide public policy issues”[5] and “[r]ating is essentially a matter for

[5]        Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] NZLR 537 (CA) at 546.

decision by elected representatives following the statutory process and

exercising the choices available to them”;[6]

[6]        At 552.

(b) (in another challenge to a council’s rate-fixing decision) — “Proper

respect must be given to the role and responsibilities of the

democratically elected council”;[7]

[7]        Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397.

(c) (in relation to a council’s decision to issue a certificate of compliance

under s 139 Resource Management Act 1991) — “It is well established

that in judicial review [proceedings] the Court does not substitute its

own factual conclusions for that of the consent authority. It merely

determines, as a matter of law, whether the proper procedures were

followed, whether all relevant, and no irrelevant considerations were

taken into account, and whether the decision was one which, upon the

basis of the material available to it, a reasonable decision-maker could

have made. Unless the statute otherwise directs, the weight to be given

to particular relevant matters is one for the consent authority, not the Court, to determine, but, of course, there must have been some material

capable of supporting the decision”.[8]

[8]        Pring v Wanganui District Council [1999] NZRMA 519 (CA) at [7].

1. The observations just referred to frequently occur in the context of a judicial

review application based on irrationality or Wednesbury unreasonableness, as in

Waitakere City Council v Lovelock.[9] There, the Court unanimously held it was not one

[9]        Waitakere City Council v Lovelock, above n 7.

of the extreme cases meeting the test for impugning rating determinations.[10]

[10]       At 397, per Richardson P, 397 per Thomas J, 419 per Blanchard J.

Significantly, Blanchard J at the conclusion of his judgment identified there is an

important distinction between judicial intervention in the rate-striking process of the

local authority and in the Authority’s exercise of the power to make a bylaw:[11]

[11]       At 420.

I would add that a local authority’s exercise of a power to make a bylaw

involves a very different set of considerations from the exercise of setting the

rating levels for a particular year.

1. In the specific context of the bylaw-making power under the FCA, the

deference principle has been recognised in both New Zealand Motor Caravan

Association Inc v Thames-Coromandel District Council (Thames-Coromandel District

Council)[12] and in New Zealand Motor Caravan Association Inc v Marlborough

[12]       New Zealand Motor Caravan Association Incorporated v Thames-Coromandel District Council

District Council (Marlborough District Council).[13]

[13]       Motor Caravan Association Incorporated v Marlborough District Council [2021] NZHC 3157

1. In Thames-Coromandel District Council, the NZMCA argued that the Council,

in passing its Freedom Camping Bylaw, could not have been “reasonably satisfied” of

the matters set out in the relevant subsections of s 11 of the FCA (set out below at

[31]). Cooper J accepted the term “satisfied” in s 11 must be read as if it were

“reasonably satisfied”. He referred to statutory processes applying to consent

authorities under the Resource Management Act 2011 (RMA) where the matters on

which the authority needed to be satisfied involved “an essentially fact-driven

judgment”.[14] Cooper J distinguished the RMA situation from that under the FCA, with

[14]       Thames-Coromandel District Council, above n 12, at [99].

the latter’s high policy content:

[100]     The question of the extent to which the Council will control freedom

camping pursuant to a bylaw made under the Freedom Camping Act is of a

different nature. Clearly, it has a high policy content and the fact that a bylaw

may only be made after the Council has followed the special consultative

procedure set out in the Local Government Act means that the relevant

decisions will be made only after the Council has consulted the public. The

situation is far removed from the close factual inquiry appropriate for

decisions about the notification of resource consent applications.

1. In relation to the NZMCA’s complaint that the Council had, in imposing

restrictions, not acted on its officers’ advice, Cooper J held:

[109] … I consider once again that is a policy consideration for the Council

to address. It is not bound to accept its officers’ advice in relation to these

matters. It is clear from the record that the Council engaged with the advice it

was given; it was not obliged to accept it.

1. In the subsequent decision in Marlborough District Council, Grice J found it

was appropriate to grant relief by setting aside the Council’s decision, leading to the

adoption of its Freedom Camping Bylaws. In doing so, her Honour acknowledged the

recognition in Thames-Coromandel District Council and other cases of the deference

principle. She recorded:[15]

[15]       Marlborough District Council, above n 13, at [153]–[155].

[153]     The Court in [Thames-Coromandel District Council] recognised that

a margin of appreciation was to be allowed to a local authority in its decision-

making. This has long been the approach taken by the Courts. For instance in

New Zealand Public Services Association Inc v National Distribution Union

Inc, Hammond J was asked to review decisions of the Hamilton City Council

in the restructure of the delivery of Council services. In the course of that

judgment His Honour noted that the Court needed to ensure it did not interfere

with a council’s decision by “assessing the council’s homework”. He declined

to interfere with the council’s decisions and analysis of the merits.

[154]     In Minotaur, the Court of Appeal noted that there was a clear intention

in Part 6 of the LGA to give councils “a wide discretion in this field. …”, and,

further:

[59] … An assessment of all relevant facts and factors is required with due

deference to the breadth of the discretion. A punctilious approach must

therefore be avoided. Section 79(1)(b)(iv) of the LGA also reserves to the

Council a discretion as to the nature and extent of any written record of the

decision under challenge. It may be, as here, that the record does not address

the specific issue raised in the proceeding. … There is no indication there

that the situation of non-resident landlords was considered when consultation

categories were formulated. That is to be expected. The Council cannot be

required to meticulously record reasons for its approach to procedural detail

as if it were a court. As s 79(1)(b)(iv) implies, that would create too heavy a

burden on a busy council with a finite budget.

[155]     More recently, in Hauraki Coromandel Climate Action Inc v Thames

Coromandel District Council, Palmer J reiterated that a Court will not

interfere with a discretionary judgment of a council, unless it is irrational and

made on a wrong principle. But he also noted there must be an evidential basis

for the judgment. In that case, the High Court decided there was no evidence

that the local authority had made any s 79 judgement at all.

(footnotes omitted)

1. Where a bylaw, as found by the Court on a review application, has been made

ultra vires by a decision-maker, the Court must exercise a discretion under ss 16–18

of the JRPA as to what, if any, relief to grant.

Overview: freedom camping

1. The FCA authorises freedom camping in any local authority area unless

prohibited by a bylaw made under the FCA, with each local authority area being

controlled by a local authority.

Freedom camping — the legal framework

1. Freedom camping on private land is not regulated by the FCA (pursuant to

s 3(4)).
[26]	The bylaw-making power relevant in this case therefore operates within a

three-fold statutory framework, comprising:[16]

[16]       See Marlborough District Council, above n 13, at [23].

(a) the FCA provisions permitting the making of freedom camping bylaws

for local authority areas (but not a bylaw that absolutely prohibits

freedom camping);

(b) requirements under the LGA in relation to consultation and decision-

making by local authorities when making bylaws; and

(c) s 17 Bylaws Act 1910, which provides that any bylaw which contains

any provisions which are invalid because they are ultra vires of the local authority shall be invalid to the extent of those provisions and any

others which cannot be severed from them.

1. The provisions of the FCA have been amended since the 2021 Bylaw was

adopted by QLDC.[17] All references in this judgment are to the provisions of the FCA

[17]       By the Self-contained Motor Vehicles Legislation Act 2023.

as they existed in 2021.

Detailed provisions

1. The statutory permission to freedom camp is contained in s 10 of the FCA:

10 Where freedom camping permitted

Freedom camping is permitted in any local authority area unless it is restricted

or prohibited in an area—

(a)	in accordance with a bylaw made under section 11; or
(b)	under any other enactment.

1. The FCA defines “freedom camp” and “freedom camping”:

5	Meaning of freedom camp
(1)	In this Act, freedom camp means to camp (other than at a camping

ground) within 200 m of a motor vehicle accessible area or the mean

low-water springs line of any sea or harbour, or on or within 200 m of

a formed road or a Great Walks Track, using 1 or more of the

following:

(a)	a tent or other temporary structure:
(b)	a caravan:
(c)	a car, campervan, housetruck, or other motor vehicle.

(2)

In this Act, freedom camping does not include the following

activities:

(a)	temporary and short-term parking of a motor vehicle:
(b)	recreational activities commonly known as day-trip

excursions:

(c) resting or sleeping at the roadside in a caravan or motor

vehicle to avoid driver fatigue.

…

1. The FCA permits freedom camping in a “local authority area”. This is defined

under s 6(1)(a) of the Act to mean an area of land that is within the district or region

of a local authority and is (relevantly) controlled or managed by or on behalf of the

local authority. Under s 12 of the Act, a local authority may not make a freedom

camping bylaw that prohibits freedom camping in all the local authority areas in its

district.

1. QLDC had the power to make bylaws for freedom camping in local authority

areas under s 11 of the FCA which provides:

11          Freedom camping bylaws

(1)         A local authority may make bylaws—

(a) defining the local authority areas in its district or region where

freedom camping is restricted and the restrictions that apply

to freedom camping in those areas:

(b) defining the local authority areas in its district or region where

freedom camping is prohibited.

(2)	A local authority may make a bylaw under subsection (1) only if it is
satisfied that—
(a) the bylaw is necessary for 1 or more of the following

purposes:

(i)          to protect the area:

(ii)         to protect the health and safety of people who may

visit the area:

(iii)        to protect access to the area; and

(b) the bylaw is the most appropriate and proportionate way of

addressing the perceived problem in relation to that area; and

(c) the bylaw is not inconsistent with the New Zealand Bill of

Rights Act 1990.

(3)

A bylaw made under subsection (1) must define a restricted or

prohibited area in either or both of the following ways:

(a)	by a map:
(b)	by a description of its locality (other than just its legal

description).

(4)

However, where a bylaw contains both a map and a description and

there is an inconsistency between the map and the description, the

description prevails.

(5)

The local authority must use the special consultative procedure set out

in section 83 of the Local Government Act 2002 (as modified by

section 86 of that Act) in—

(a)	making a bylaw under this section; or
(b)	amending a bylaw made under this section; or
(c)	revoking a bylaw made under this section.

…

1. To make a freedom camping bylaw, QLDC needed to be satisfied the bylaw

was necessary to protect the area (the area protection criterion) and/or to protect the

health and safety of visitors to the area and/or to protect access to the area.

1. Section 83 of the LGA (as referred to in s 11(5) of the FCA) identifies the

special consultative procedure (SCP) which QLDC had to follow:

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:

(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.

…

1. Also relevant to QLDC’s decision-making are ss 78 and 82 of the LGA, which

provide for consideration of community views and set out the principles of

consultation which a local authority must apply:

78          Community 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.

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.

Local Government New Zealand good practice

1. QLDC is a member of Local Government New Zealand (LGNZ). In April

2018, LGNZ published a “Good practice guide for freedom camping”, as a resource

prepared for councils and tourism operators (the “Good Practice Guide”).

1. The Good Practice Guide described the need for a genuine consultative

approach with stakeholders, with the NZMCA and residents associations specifically

included.

1. The Good Practice Guide then focused on good practice in relation to “site

assessment”. The Good Practice Guide explains in relation to site assessment:

Good practice

Good practice has developed around the preparation of Site Assessments as

part of the freedom camping bylaw making process to evaluate sites for

tenting, certified-self-contained, and non-self-contained. Expectation is rising

around the country for a comprehensive justification of council decisions to

restrict or prohibit areas from freedom camping. The freedom camping bylaw

is one of the most complex and potentially litigious of council bylaws and the

weight of evidence to justify decisions is rising.

Site Assessments can cover every council reserve area where overnight

parking could occur, or concentrate on ‘hot spots’. However, the more robust

and complete the Site Assessment, the more confidence the council can take

in its recommendations. It is recommended that a council’s Site Assessment

cover as many sites as possible.

The Site Assessment considers each site against specific criteria, as provided

for under s.11 of the FCA, to determine if that site is a ‘significant site’ by

using a scoring system. If a site is classified as a ‘significant site’ the document provides an assessment on the type of restrictions which would

apply to those particular sites, such as prohibited or restricted overnighting. It

is a consistent, fair and more legally defensible approach to the classification

of council land in relation to restrictions or prohibitions.

1. As is evident from that commentary, documented individual site assessments

are a means of ensuring the local authority considers each site against the specific

criteria identified in s 11 of the FCA.

1. While the Good Practice Guide has no regulatory standing, the appropriateness

of the guidance it provides councils in relation to site assessment was subsequently

underlined by the judgment of this Court in Marlborough District Council. The

NZMCA in that case challenged a council’s freedom camping bylaw on several

grounds, including that a 2020 bylaw was not the most appropriate and proportionate

way of addressing the perceived problem of freedom camping in the district. Grice J

upheld this second cause of action. She held the Council was required to consider the

most appropriate and proportionate way of addressing a perceived problem in each

area. It was not apparent the issues in all areas of the district were considered as

required.[18] The Council had accordingly failed to comply with s 11(2) of the FCA.

[18]       Marlborough District Council, above n 13, at [159], [161], [167].

Marlborough District Council may accordingly be viewed as an endorsement of the

Good Practice Guide approach to documented, site-specific assessment.

The 2019 bylaw

1. The 2019 Bylaw had been adopted by QLDC in December 2019. At the same

time, QLDC resolved:

(a) upon the basis of “sufficient evidence to indicate that freedom camping

at the Luggate Red Bridge Reserve was appropriate”, the existing

prohibition of freedom camping at the Red Bridge was uplifted; and

(b) QLDC would undertake a full and comprehensive review of the 2019

Bylaw within the next 18 to 24 months.

1. The effect of the 2019 Bylaw was to permit restricted freedom camping at two

sites, one at Luggate (the Red Bridge) and the other at Kingston.

QLDC’s process in 2021

1. QLDC’s Jeannie Galavazi was centrally involved in the process of formulating

a new bylaw. She provided a detailed affidavit as to the review process that began in

early 2021.

1. Ms Galavazi explained QLDC engaged Xyst to undertake a freedom camping

site assessment. Xyst was contracted to identify all QLDC owned or administered

land which had the potential to be used for freedom camping and then to assess each

site against the specific criteria under s 11 of the FCA. Xyst was required to identify

a full list of potential sites and to determine if the site was a “significant site” by using

a scoring system. Ms Galavazi deposed the methodology applied by Xyst in carrying

out its assessment was that agreed by LGNZ as “best practice”, evidently a reference

to the practices identified in LGNZ’s Good Practice Guide. Xyst assessed 105

locations which Ms Galavazi described as falling into two categories, namely

residential areas and separate individual sites.

1. In June 2021 Xyst provided a draft Site Assessment (Xyst draft report). The

Xyst draft report was not produced in evidence. Ms Galavazi in a report to the QLDC

on 24 June 2021 (Galavazi June report) described Xyst’s (draft) assessment as being

“in accordance with national best practice”. Ms Galavazi explained to the full Council

the site assessment scoring methodology in this way:

The scoring method is based on the three assessment criteria in the Act:

1.           to protect the relevant area;

2.           to protect the health and safety of people who may visit the area;

3.           to protect access to the area.

Each criteria (the protection of area, health and safety, access) have been

allocated scores from 1 (being the lowest) to 5 (being the highest). The total

score provides the total significance score.

If there is one significance score of 5 — this means the site has a “significant

issue” and freedom camping may be prohibited or restricted. Cumulatively, if the score is 9 or above out of 15 (60%), this means there’s a number of

concerns and therefore the site would not be assessed as appropriate for

freedom camping. If the score is 8 or below (53%)[19] it means there are not

[19]       In Xyst’s finalised report (discussed from [51] below) the “8 or below” figure was expressed as

many concerns and restricted freedom camping could be appropriate.

The threshold of 9 or 60% is consistent with other councils and NZMCA’s

assessments.[20]

[20]       A similar but not identical description of the site assessment scoring methodology was set out in

1. Ms Galavazi identified in her June report that the Xyst draft report

recommended restricted camping at two defined sites “(that are not roads)”, being the

Red Bridge and at the Camp Hill Road car park at the Hāwea Whitewater Park. The

Xyst score for those two sites is set out in Table A:

Table A

Site name	Protect area	Protect H & S*[21]	Protect access	Total score
Camp Hill Road,	3	2	3	53%
Hāwea
Red Bridge,	2	1	1	27%
Luggate

[21]       The asterisk denoted “health and safety.

1. Ms Galavazi recorded Xyst had assessed “representative roads” in the District

as it was not practical to assess every QLDC road. She recorded there were seven of

those assessed as areas where freedom camping can occur. The seven

(“representative”) road areas so assessed by Xyst (with Xyst scores) are set out in

Table B:

Table B

Site name	Protect area	Protect H & S	Protect access	Total score
Glenorchy	3	3	2	53%
Paradise Road
Glenorchy	2	3	2	47%
Routeburn Road
Kinloch Road –	2	2	3	47%
Queenstown
Station Road
Mallaghans Road	2	2	2	40%
Rees Valley Road	2	1	2	33%
Rivergold Way	3	1	2	40%
Routeburn Road	2	1	2	33%

1. Ms Galavazi explained to the Council that she (and others) had also considered

“sites” not covered by the Xyst recommendations to determine if there could be more

areas made available for restricted freedom camping. She stated three additional

criteria (the “Council criteria”) had been used to assess all sites:

(a)	Only have one “5 significance” score;
(b)	Formed carpark with ability to mark out individual vehicle bays; and
(c)	Toilet (meaning a public toilet nearby).

1. Ms Galavazi stated the adoption of the Council criteria had added five sites to

the list represented by the sites identified in Tables A and B. Those additional sites

(with Xyst’s scoring) are set out in Table C:

Table C

Site name	Protect area	Protect H & S	Protect access	Total score
Beacon Point	5	1	4	67%
Road, Wānaka
Gibbston	4	3	4	73%
Reserve,
Gibbston
Glenorchy	4	1	4	60%
Domain,
Glenorchy
Hopkins Street	4	1	5	67%
Recreation
Reserve, Luggate
Morven Ferry	4	1	4	60%
Reserve, Arrow
Junction

1. For the purpose of the discussion that follows, I have identified four additional

sites beyond those identified in Ms Galavazi’s lists. Those additional four sites (with

Xyst’s scoring) are set out in Table D:

Table D

Site name	Protect area	Protect H & S	Protect access	Total score
Albert Town	4	2	4	67%
Recreation
Reserve
Bodkin Street	4	3	4	73%
Reserve,
Lake Hāwea
Matakauri Park,	5	2	4	73%
Queenstown
One Mile and	5	1	5	73%
Saint Omer Park

1. A QLDC workshop was to occur before the next QLDC meeting scheduled for

29 July 2021.

1. Xyst provided its finalised site assessment report on 8 July 2021 (the Xyst July

report).
[52]	The Xyst July report quoted the statutory requirements for a freedom camping

bylaw under s 11(2) as the criteria for assessment. The next section of the report

outlined how Xyst had interpreted the assessment criteria specifically. Xyst recorded:

6.1	Protection of the area
• Protection of the natural values of an area including

ecosystems, biodiversity, plants and wildlife including the

risk of damage by fire

• Protection of the cultural values of an area including historic

sites of significant to iwi and early settlement of the area

• Protection of the amenity values of an area including

residential and commercial areas (e.g. protection of views

from residential and commercial properties, protection from

noise from camping activity and arrival and departure of

campers, loss of privacy) [the “amenity values factor”]

• Protection of water quality of an area or catchment where run-

off may impact on drinking water quality (e.g. protection of

drinking water from contamination from human waste)

• Protection of the economic values of an area including

residential and commercial areas (e.g. residential property values and loss of trade in commercial areas through

occupation of car parks) [the “economic values factor”]

• Protection of the recreational values of an area including the

capacity of a site, visitor experience and setting.

6.2	Protection of the health and safety of people who may visit the
area
• Protection of visitors to an area from fire, crime or other direct

threats (e.g. in areas in close proximity to high fire risk areas

such as the Queenstown Red zone, or areas where there is a

higher risk of crime such as in commercial areas where

alcohol related crime is a known issue, or direct t[h]reats such

as flood or landslide risks)

• Protection of visitors to an area from hazards associated with

traffic and traffic management including access to and from a

site (including emergency vehicles)

6.3	Protection of access to the area
• Protection of access to an area for residents and other (non-

camping) visitors (e.g. ability to access residential areas, boat

ramps, foreshores, car parks, rivers, sports recreation and

community facilities including cemeteries)

• Protection of access to an area for emergency services, service

vehicles (e.g. rubbish trucks), public transport, school buses

and maintenance vehicles

(emphasis added)

1. The Xyst July report then set out the assessment methodology Xyst had

adopted, reflecting Ms Galavazi’s explanation in the Galavazi June 2021 report to

QLDC (above at [44]). Xyst’s scoring system was further summarised as in Table E:

Table E

Score	Description	Cut of[f] Points
1	No significant concerns	<54% Camping acceptable with controls
2	Few concerns	>60% Camping not acceptable
3	Some concerns

1. Significant concerns

2. Very significant concerns

3. Xyst concluded, as they had in their June draft report, there were nine locations

which were acceptable for freedom camping with controls in place, as tabulated above

as [45] and [46].

1. Attached to the Xyst July report was an appendix in which Xyst summarised

their assessment of individual sites. Each survey contained a site description, a

location description, a site map, one or more photos, observations in relation to the

three s 11(1) criteria, and an answer to the question: “Is site acceptable for camping?”

Examples are attached as Schedules A, B and C.

1. In her evidence, Ms Galavazi stated (in parallel with comment in the Galavazi

June report), of these nine “Xyst” sites, only two (Camp Hill and Red Bridge) were

truly sites, whereas the remaining seven were representative samples of roads in the

district.

1. On 15 July 2021 Ms Galavazi and her manager presented a report to QLDC in

relation to a draft freedom camping bylaw (the July Agenda report). In the July

Agenda report Ms Galavazi provided background in relation to freedom camping in

the District since 2019. She referred to freedom camping behaviours from 2018. She

attached the Xyst July report and summarised it. She referred to a pre-consultation

survey by which public feedback had been obtained and attached a summary of

responses. She referred to potential freedom camping areas including those identified

by Xyst and the seven added pursuant to the Council criteria. She referred to proposed

changes to a draft bylaw, following the survey, to protect certain areas.

1. Ms Galavazi in her affidavit accepted her report “could have been more clearly

worded”. Ms Galavazi explained the failure to refer to the seven “representative road”

locations (above at [46]):

…we categorised seven of them as “representative roads”…That is why the

July Agenda Report states there are only two “sites” recommended by Xyst as

appropriate for restricted freedom camping.

We discussed these seven representative road locations and formed the views

that those locations created too high a risk to the health and safety of those

who would visit the site. That was because these were rural roads and there

were concerns about traffic health and safety risk should freedom camping be

permitted at those locations.

I confirm that specific considerations given to the omitted seven Xyst

recommended representative roads and they were determined to be

inappropriate for freedom camping having regard to the s 11(2) factors. However, the Hearing Panel expressly considered all nine locations identified

by Xyst as outlined in the June memorandum.

(emphasis added)

1. In her affidavit, Ms Galavazi did not identify the “we” to whom she was

referring. No documentary record has been produced of such a discussion. It may be

inferred it was a matter later discussed by QLDC during its 29 July 2021 meeting but

not recorded in the minutes. If the exclusion of the seven “representative roads” was

a view taken by the councillors at the 29 July 2021 meeting, then it is unclear in what

way the councillors who went on to form the Hearing Panel would have later come to

“expressly consider” the sites having already found the seven sites to be “too high a

risk”.

1. Ms Galavazi, in the July Agenda report under “Potential Freedom Camping

Areas” recorded the Red Bridge and Camp Hill Road car park “are the only two sites

that were assessed that had a significance score of 8 or less”. She then referred to the

five sites added pursuant to the Council criteria (above at [48]).

1. Ms Galavazi recommended that QLDC approve:

(a) the commencement of public consultation using the SCP (above at [17])

in relation to the proposal to make a new freedom camping bylaw; and

(b) that QLDC appoint four councillors as the Hearing Panel to hear and

consider submissions on the proposal and to make recommendations to

the Council on adoption of the proposed bylaw.

1. The July Agenda Report contained under a heading “Legal Considerations and

Statutory Responsibilities” the following discussion (in relation to s 11(2)(b) and (c)):

97       The proposed bylaw engages the right to freedom of movement in

section 18 of the New Zealand Bill of Rights Act 1990 (NZBORA).

However, the proposed controls are considered reasonable limits on that

right as allowed for in section 5 of the NZBORA:

Subject to section 4, the rights and freedoms contained in this Bill of

Rights may be subject only to such reasonable limits prescribed by law

as can be demonstrably justified in a free and democratic society.

98.      The right to freedom of movement does not obviously encompass a

right to remain in a certain place for the purpose of camping overnight.

Nonetheless, any limitation there may be on the right to freedom of

movement is considered to be based on a rational link between the

bylaw provisions and the objective of controlling the adverse effects of

freedom camping. The expansion of proposed areas for prohibition

remains a proportionate control.

1. Ms Galavazi attached to the July Agenda report a SOP in relation to the

proposed bylaw together with a draft of the freedom camping bylaw 2021 (the draft

bylaw).

1. The SOP, in introducing the proposed bylaw, recorded it had been prepared in

accordance with the requirement of s 11 of the Act (as well as ss 83 and 86 of the

LGA). Then there followed:

(a)	two pages of discussion of s 11(2)(a) requirements;
(b)	two and a half pages of discussion in response to a heading “Is the

proposed bylaw the more appropriate and proportionate way of

discussing the problem?” and “Are there implications under the New

Zealand Bill of Rights Act 1990?”

1. The draft bylaw provided no person may freedom camp in a local authority

area marked as prohibited in Schedule A of the draft. Schedule A contained 27 aerial

photographs of areas in the district in which “prohibited camping areas” were coloured

red. The draft bylaw then provided any local authority area not marked as prohibited

in Schedule A is a restricted local authority area.

1. The draft bylaw identified five sites as restricted freedom camping sites,

namely the Red Bridge, the Camp Hill carpark, the Gibbston Reserve carpark, the

Glenorchy Domain carpark and the Morven Ferry Reserve.

1. QLDC met for its scheduled meeting on 29 July 2021. Its business included

the draft bylaw. The Council minutes record Ms Galavazi and her manager presented

the July Agenda report. QLDC:

(a)	noted the contents of the July Agenda report;
(b)	determined under the LGA the problem presented by freedom camping

in the district was most appropriately and proportionally addressed by

way of a bylaw;

(c)	approved the commencement of public consultation using the SCP; and
(d)	appointed four councillors of whom three were to be a hearing panel

(Hearing Panel) to hear and consider submissions on the proposal and

to make recommendations to the Council (at a later meeting the Council

corrected the reference to the LGA to be a reference to the FCA).[22]

[22]       The December Agenda report subsequently prepared by Ms Galavazi identifies the three

1. The draft bylaw and SOP were publicly notified in early August 2021.

Submissions were invited. The SOP recorded in relation to Xyst’s Site Assessment,

which was available on QLDC’s website:

19 In February 2021, the Council engaged Xyst Limited to complete a

comprehensive Site Assessment to identify and assess Council owned or

administered land throughout the Queenstown Lakes District which has

the potential to be used for freedom camping as provided for under

section 11 of the FCA. 105 sites across the district were assessed, using

methodology that has been agreed by Local Government New Zealand

as best practice. The report found that the current controls under the

current bylaw are generally appropriate with a few minor alterations.

1. The NZMCA made submissions that challenged the appropriateness of Xyst

having included, in their assessment of the area protection criterion (under s 11(2)(a)(i)

of the Act), the economic values factor and the amenity values factor (as identified at

[52] above). The Hearing Panel obtained a legal opinion from Meredith Connell

which Ms Galavazi states “informed the Hearing Panel’s recommendations”. The

Meredith Connell opinion itself was not disclosed by QLDC during this proceeding,

but the records indicate it was discussed by QLDC officers and by the Hearing Panel.

[70] In his submissions, Mr Page for the NZMCA submitted both the economic values factor and the amenity values factor were irrelevant to the s 11(2) assessment. On the documentary evidence provided, the only references responding to the

NZMCA’s submission relate to the economic values factor. Implicitly the NZMCA’s

concerns over the amenity values factor were rejected.

1. Ms Galavazi produced a copy of the Hearing Panel Deliberations Report, as

presented to the Council on 13 December 2021, in which the panel recorded “points,

themes and issues discussed by the Hearing Panel in their deliberations…”. In a

“Submission Themes Table”, the Hearing Panel by reference to “themes” identified in

submissions made, the comments of QLDC officers, and the decision made on that

theme by the Hearing Panel.

1. In relation to the theme “Council disregarded Xyst site assessment” the

“comment” and “decision” columns recorded:

The Xyst assessment rates the site as “not	Agree with Officer Comment, having
acceptable” for camping. “Significant	regard to Meredith Connell legal opinion.
concerns” meant a site scored a 5 for one of
the FCA s11 Criteria (protect access,	Hearing Panel discussed this at length and
protect the area, H &S), or that the	tested robustly. Refer to Hearing Panel
combined score was 8 or above out of 15.	Deliberations Report Xyst Site Assessment
Council officers explored if any sites that	(Section 5).
were assessed as having a significance
score that justified prohibiting freedom	Xyst Site Assessment is a tool and one of
camping under the FCA (8 or above out of	many inputs to the bylaw.
15) could be provided for freedom camping
if the sites were managed with appropriate	Change: Disagree with Xyst Site
controls. The criteria was that the site must	Assessment on Rees Valley Station Road,
have only one ‘5’ significance score, a	Kinloch Road, Camp Hill Carpark and
formed carpark, and a public toilet nearby	prohibit freedom camping at these
(as the evidence suggests that if there is no	locations.
toilet then health and safety and
environmental issues arise). This provided
a further five sites to be considered, four of
which were notified in the SOP.
The Xyst site assessment is a tool to assist
the Council as decision-maker to apply the
statutory factors to the relevant local
authority areas.

1. The Hearing Panel’s express reference (twice) to a combined score of eight out

of 15 (i.e. 53 per cent) giving rise to “significant concerns” (which “justified

prohibition”) is a reduction of the threshold identified by Xyst in Ms Galavazi’s June

report (above at [44]) where the threshold was “9 or above out of 15” (or 60 per cent) which she recorded was “consistent with other comments and NZMCA’s

assessments”.

1. In relation to the theme “New Zealand Motor Caravan Association” the

comment and decision columns recorded:

Officers address the points raised in the	Agree with Officer Comment and having
submission as follows:	regard to Meredith Connell legal opinion.

•	Officers view, and that of legal	Hearings panel discussed this submission at
advice, is that the proposed bylaw	length and tested it robustly. Agreed that
appropriately applies s11 of the	council would not consider economic
FCA. See MC opinion for analysis	impacts and effects on property values
of submitter’s legal advice on the	when deciding on each site.
FCA.
•	Refer to above comment on the	Refer to Hearing Plan Deliberations Report
Xyst site assessment. Overall, we	Xyst Site Assessment (Section 5).
consider the Xyst site assessment is
a tool and it does not necessarily	Xyst Site Assessment is a tool and is one of
follow that any defect in the Xyst	many inputs.
assessment automatically infects
the Council’s decision.	Also refer Hearing Panel Questions and
Answers Table.
•	The Xyst assessment followed
LGNZ best practice and a score of
8 out of 15 in the assessment	No change.
justifying prohibition is consistent
with that best practice. The
threshold for prohibition is
therefore considered appropriate.
•	Officers consider that the
prohibitions in the proposed bylaw
are consistent with s11 of the FCA
and are based on evidence.
•	The ability to restrict the number of
vehicles that can freedom camp at
an area is important as it will
enable Council to respond to
problem areas if they arise. The
ability for the council to make
changes by council resolution
ensures that the regulation of
numbers of freedom campers at
specific sites is flexible and able to
be implemented quickly but won’t
enable Council to prohibit camping
at any site.

This bylaw process is under the FCA not

the Reserves Act. All reserves, including

those with the prohibition under Reserves

Act, were assessed under the site

assessment, and were assessed as having

concerns significant enough to justify

prohibition under s 11 FCA

1. Those recorded comments and decisions, as they appear in the Submission

Themes Table of the Deliberations Report, do not identify in any particular way the

advice given by Meredith Connell.

1. That said, the Hearing Panel then recorded its discussions on the Xyst Site

Assessment in Section 5 of the Deliberations Report.

5.           Xyst Site Assessment

Hearing Panel discussion and questions:

a. The panel discussed the submissions that had concerns with

the Xyst Site Assessment, particularly those that questioned

the process of how the Xyst report was prepared or questioned

the consistency between the site assessments.

b. Xyst report is just one tool and is prepared by an independent

consultant.

c. Has the economic assessment criteria added to the Xyst Site

Assessment (which can’t be considered) skewed the Xyst Site

Assessment ‘numbers’

d. The panel discussed if the panel needed to do a specific site

assessment for each site, and if the Xyst Site Assessment was

peer reviewed.

Staff Response

e. Some sites that Xyst recommended to be prohibited were

included as restricted sites in the Statement of Proposal, as

council officers applying the statutory test considered that if

there were restrictions on the numbers of parks available and

toilets were available, that effects on those sites were more

manageable. The Panel can make a similar decision (eg

disagree with the Xyst report) based on Councillor knowledge

and the submissions. Council should include in the officer

report that the Xyst report has, in respect of some sites,

referred to matters that council didn’t require as criteria (eg

economic effects or effects on property values). It is perfectly

acceptable to agree with the site assessment having

disregarded those matters from their consideration.

f. There was a staff process to decide extra sites in addition to

the sites recommended for restricted camping in the Xyst Site

Assessment – formed carpark, publicly available toilet, no ‘5’

significance scores. This resulted in Glenorchy Domain Carpark (assumed toilets available), Gibbston Reserve

Carpark, Moven Ferry Reserve Carpark being included in the

SOP as additional sites for restricted freedom camping.

g. Council doesn’t need actual evidence of actual damage at

individual sites, it can rely on historic evidence and

experience, and then it’s a matter of reasonable extrapolation.

For example, it can be reasonably assumed from general

experience of human pollution at a number of sites without

toilets that all sites without toilets where freedom camping

occurs will have human pollution.

h. In addition to the above, the sites that were proposed to allow

restricted camping received over 800 comments in the

pre-consultation feedback. Council has also previously

completed a site assessment in 2011. This is all part of the

information used to inform the decision. There are many

inputs and Councillors also bring their own knowledge of the

district to the assessment.

i.           Applying the broader test – the Panel have done this via the

SOP, hearing and deliberations. The hearings panel will reach

its own conclusion based on the evidence in front of them.

…

CONCLUSION:

j. Xyst Site Assessment is only a tool and is one of many inputs.

It is not a definitive assessment of the statutory test and the

Panel may disagree with it if their application is different.

1. It would appear from paragraph C in section 5 of the Deliberations Report

(above [76]) that the Panel accepted it was impermissible to consider the “economic

assessment criteria added to the Xyst site assessment”. At this hearing, Mr Campbell

for QLDC accepted the economic values factor assessed by Xyst in relation to the area

protection criterion was an irrelevant consideration. Mr Campbell recorded QLDC

addressed this by not taking economic values into account in making its decision.

1. In the Deliberation Report the Hearing Panel then considered specifically four

particular sites identified for restricted freedom camping in the draft bylaw (Camp Hill

Road, Gibbston Reserve, Glenorchy Domain carpark and Morven Ferry Reserve). The

Panel concluded prohibition of freedom camping was necessary at each of them. In

relation to the Glenorchy Domain carpark the Panel recorded it agreed with the Xyst

assessment and noted the proposed site was directly in front of the rugby club and

concluded it was necessary to prohibit freedom camping to protect the area (and in addition to protect access to the area). Xyst had scored the Glenorchy Domain carpark

four for area protection, one for health and safety protection, and four for access

protection, a total score of nine, and therefore denoted “not acceptable”. The Panel

concluded it was appropriate to continue (as under the amended 2019 Bylaw) to

provide for freedom camping at Red Bridge, Luggate — which thereby became the

single such site recommended by the Panel.

1. A meeting of the Council was held on 16 December 2021. Ms Galavazi and

her manager presented a further report (the December Agenda report) with the draft

(QLDC) Freedom Camping Bylaw 2021, for adoption. In the December Agenda

report, Ms Galavazi provided an executive summary of steps taken by QLDC to date

and the submissions received. She provided the Hearing Panel’s Deliberations Report.

She recommended the Council determine the Bylaw was:

(a) necessary to protect the areas for which freedom camping is prohibited

or restricted, to protect the health and safety of people who may visit

the areas, or to protect access to the areas;

(b) the most appropriate and proportionate way of addressing the perceived

problem in relation to the areas; and

(c) not inconsistent with the New Zealand Bill of Rights Act 1990

(NZBORA).

1. Under “Context”, Ms Galavazi referred to legal considerations including the

relevance of impacts on adjacent properties, which she discussed in this way:

One submitter, the NZMCA, considers that the Xyst Site Assessment Report

takes into account certain matters that are not permissible considerations

under s 11(2); for example, the effect of allowing freedom camping at a local

authority area on the property value of adjacent properties. Its submission

attaches a legal opinion about the interpretation of s 11(2). The Council has

received legal advice, which has informed the Hearing Panel’s

recommendations and the recommended option is consistent with that advice.

[81] In the December Agenda Report, Ms Galavazi went on to deal specifically with the “Council’s site-by-site assessment (prepared by Xyst)”. She noted the NZMCA had submitted the Xyst site assessment relied on matters that were not s 11 criteria.

Ms Galavazi recorded:

The Xyst Site Assessment Report is a tool to assist the Council as decision-

maker to apply the statutory criteria to the relevant local authority areas.

Councillors are able to arrive at a different conclusion about a site after

considering the statutory criteria, informed by the submissions and the

Statement of Proposal. … There are many inputs and the Hearing Panel have

also applied their own knowledge of the district to the assessment.

1. Ms Galavazi continued:

   The Panel agreed with the NZMCA submission that the economic assessment

   criteria that was included in the Xyst Site Assessment should not apply, and

   therefore they did not consider this for the relevant site assessments where

   these criteria had been applied by Xyst. However, this did not affect the final

   outcome as the Panel agreed considered that the s 11(2) criteria were still met

   for each of those sites.

[83] Under a further heading “Legal Considerations and Statutory

Responsibilities”, Ms Galavazi recorded the statutory criteria in s 11(2) (of the FCA)

that the Council had to consider while hearing submissions were as set out in her

recommended determination (above at [79]). Ms Galavazi then added:

Because it is proposed to expand the areas in which freedom camping is

prohibited, the Council will have to be satisfied that the additional limits on

freedom of movement are proportionate and appropriate having regard to the

purpose of the FCA, namely to regulate freedom camping on local authority

areas so as to control and manage the adverse effects of freedom camping.

1. On 16 December 2021, at an ordinary QLDC meeting, the Council made the

three determinations suggested by Ms Galavazi in the December Agenda Report. It

adopted the 2021 Bylaw. Thereby the 2021 Bylaw came to identify the Red Bridge at

Luggate as the single site in the district at which freedom camping would be permitted.

QLDC’s treatment of Xyst’s scoring

The scoring of irrelevant considerations

1. As identified above at [52], Xyst, for the purpose of its scoring of identified

sites, treated the economic values factor as relevant under the area protection criterion

(per s 11(2)(a)(i) of the Act). That irrelevant aspect of protection sat alongside five

other aspects of protection.

1. As reflected in the scores arrived at by Xyst there is for each site a single score

for the area protection criterion with no indication of the extent to which the score is

influenced by Xyst’s irrelevant consideration of the economic values factor.

1. The central relevance of Xyst’s scores to QLDC’s consideration of the bylaw

is clear. QLDC proceeded on the basis the scoring methodology was an integral aspect

of the national best practice QLDC was applying. The significance of a change of

score by one point out of 15 is evident in the Xyst’s identification of “cut off points”:

60 per cent (nine out of 15) or above meant camping was “not acceptable”; 54 per cent

(eight out of 15) meant camping was “acceptable with controls”.

1. I recognise the sensitivity of Xyst’s scoring system was slightly modified in

relation to the three sets of criteria through Ms Galavazi’s addition of the Council

criteria whereby (departing from Xyst’s approach) a site could have one significant

score of five without the site being treated as prohibited or restricted.

Beacon Point Road example

1. Considering the “one significance score of five adjustment” (in the Council’s

new criteria), the continuing sensitivity of the scoring system may be illustrated in

relation to Ms Galavazi’s “five additional sites” (Table C) by reference to the site at

Beacon Point Road, Wānaka. For convenience I reproduce the relevant line from that

Table:

Site name	Protect area	Protect H & S	Protect access	Total score
Beacon Point	5	1	4	67%
Road, Wānaka

1. Xyst’s individual site assessment for Beacon Point Road is reproduced as

Schedule A to this judgment. As reflected in the scoring table, Xyst concluded there

were “very significant concerns” in relation to the area protection criterion and the site

was assessed as “not acceptable” for camping. The site description recorded the

“popular recreational area” was “overlooked by residential properties”.
Albert Town Recreation Reserve example

1. The continuing sensitivity of the scoring system can also be illustrated in

relation to sites I have identified in Table D by reference to the site at Albert Town

Recreation Reserve. For convenience, I reproduce the relevant line from that Table:

Site name	Protect area	Protect H & S	Protect access	Total score
Albert Town	4	2	4	67%
Recreation
Reserve

1. Xyst’s individual site assessment for Albert Town Recreation Reserve is

reproduced as Schedule B to this judgment. As reflected in the scoring table, Xyst

concluded there were “significant concerns” in relation to the area protection criterion

and the site was assessed as “not acceptable” for camping. Xyst recognised a need for

“protection of the economic values of an area including residential and commercial

areas”. As with the Beacon Point Road site, Xyst’s total score for the site was 67 per

cent.

Bodkin Street Reserve, Lake Hāwea, example

1. The Bodkin Street Reserve at Lake Hāwea is another example (in Table D).

For convenience, I reproduce the relevant line from that Table:

Site name	Protect area	Protect H & S	Protect access	Total score
Bodkin Street	4	3	4	73%
Reserve,
Lake Hāwea

1. Accordingly, Xyst gave this site a total score of 11 (73 per cent). As reflected

in the scoring table, Xyst concluded there were “significant concerns in relation to the

area protection criterion” and the site was assessed as “not acceptable” for camping.

1. Xyst’s individual site assessment for the Bodkin Street Reserve is reproduced

as Schedule C to this judgment. The site description refers to this as “small corner

reserve adjacent to residential and commercial area …”. The only entries under the

area protection criterion read:

• protection of the amenity values of an area including residential and

commercial areas;

• protection of the economic values of an area including residential and

commercial areas.

1. Under the heading “Recommendation” Xyst recorded:

   Unsuitable for camping given the need to protect residential amenity including

   protection of views for residential properties, protection from noise from

   camping activity and arrival and departure of campers, loss of privacy and

   access to adjoining properties and protection access to reserve which is only

   acceptable from road frontage.

2. Had Xyst revisited its scoring to eliminate any weighting for the irrelevant

considerations, to reduce the score of four to a score of one, Xyst would have

reclassified this site (now at eight points) as “acceptable with controls”.

A reconsideration of Xyst’s scoring?

1. The Hearing Panel, upon receipt of the Meredith Connell opinion, determined

it would not consider, in its assessment of the area protection criterion, the economic

values factor. Its recorded decision then was that the Xyst site assessment was “a tool

and one of many inputs” (above at [72]). In response to the officers’ comment — that

the Xyst assessment followed LGNZ’s best practice, a score of eight out of 15

justifying prohibition was consistent with best practice, and the threshold for

prohibition was therefore considered appropriate — the Hearing Panel decided “no

change” (above at [74]).

1. When the Hearing Panel came to record its discussions on the Xyst site

assessment for Beacon Point Road and other sites (above at [52]), the Panel responded

to a question as to whether the “economic assessment criteria” had “skewed the Xyst

site assessment ‘numbers’”. The Panel recorded that “Council should include in the

officer report that the Xyst report has, in respect to some sites, referred to matters that

council didn’t require as criteria (e.g. economic effects or effects on property values),

it is perfectly acceptable to agree with the site assessment having disregarded those

matters from their consideration” (emphasis added, as the expression used, namely

“require” should more accurately have stated “allow”).

[100] It appears the Hearing Panel did not attempt to specifically identify how

QLDC might reliably disregard the property values factor and amenity effects from its consideration. Ms Galavazi, in her December Agenda report, repeated the formula

that the “Xyst site assessment report is a tool to assist the Council as decision maker

to apply the statutory criteria”. But she did not suggest how an irrelevant consideration

affecting the area protection score could be reliably excluded. Similarly, Ms Galavazi

stated (above at [82]) the Panel “did not consider [the economic assessment criteria]

for the relevant site assessments where these criteria had been applied by Xyst”. She

continued that “this did not affect the final outcome as the Panel agreed that the s 11(2)

criteria was still met for each of those sites”. I infer by “met”, Ms Galavazi meant the

Panel’s assessment of the three criteria required prohibition of camping at each of the

sites in question. Ms Galavazi, like Mr Campbell, did not explain how the Panel

excluded consideration of the economic values factor from the area protection score

in order to arrive at the conclusion that the area protection criterion was “met” for each

of the sites. There is nothing in the record to indicate that.

Issue 1A : irrelevant consideration of the economic values factor?

Overview submission

1. In relation to QLDC’s reasons for its decision-making, Mr Campbell submitted

the Council’s power to make bylaws under the FCA is classed as dealing with “wide

public policy issues”. This requires the Court, he says, to recognise the Council had

significant latitude in the decision it reached. He similarly submitted this Court would

be taking an unduly niggardly approach if it were to find the extent of reasons recorded

by the Council for its approach was so lacking as to invalidate the bylaw.

Discussion — the economic values factor

1. It is common ground that the ‘economic values’ factor scored by Xyst as one

aspect of the area protection criterion was an irrelevant consideration. For

convenience, I reproduce again the wording by which Xyst defined the economic

values factor:

Protection of the economic values of an area including residential and

commercial areas (e.g. residential property values and loss of trade in

commercial areas through occupation of car parks).

1. On my assessment of the evidence, the scores assessed by Xyst in relation to

each of the three s 11 criteria, and the resulting total scores, were of central importance

to the Hearing Panel and to QLDC in their consideration of the proposed 2021 Bylaw.

The importance of scoring each site against specific criteria had been identified as

“good practice” by LGNZ in April 2018. Implicitly, it was that which led to QLDC’s

appointment of Xyst to undertake the site assessments. The significance of adding or

subtracting a single point out of the total possible 15 is evident in the Galavazi June

report — a score of nine or above meant the site would not be assessed as appropriate

for freedom camping, whereas a score of eight or below meant restricted freedom

camping could be appropriate. Furthermore, a significance score of five in relation to

any of the three s 11 criteria meant the site had a “significant issue” and freedom

camping might be prohibited or restricted. The significance of the scoring was also

indicated in the subsequent Hearing Panel deliberations report. The Hearing Panel’s

combined threshold score (for unexplained reasons altered from Xyst’s nine out of 15)

was now eight out of 15 but subject to further sites being considered (five in the event)

through adoption of the new Council criteria.

1. One matter the Hearing Panel needed to address was the recognition, on legal

advice, that the economic values factor could not be taken into account in the score

for the area protection criterion. No one at QLDC appears to have identified how

councillors might reliably reassess the scoring for the area protection criterion. It is

clear from the sophistication the Panel introduced through the new Council criteria

that Xyst’s scores (and in particular scores of five out of 15) would continue to be

relevant. What the officers suggested to the Hearing Panel (above at [76]) was that

the Panel itself could make a “similar decision” based on Councillor “knowledge and

the submissions” and that “the Xyst site assessment is a tool to assist the Council as

decision-maker to apply the statutory factors for the relevant local authority areas”.

[105] This “similar decision” approach was closely reflected in Ms Galavazi’s

December Agenda Report (above at [79]).

1. Mr Campbell submitted the Court could be satisfied the Hearing Panel and the

Council have undertaken a “critical review” of the Xyst report. In his words:

It would have been entirely permissible for QLDC to not engage a consultant,

undertake its own assessment of sites, and make a decision using the SCP as

to restrictions and prohibitions. This is effectively what it did by process of a

critical review of the Xyst report, a review which was aimed at trying to

identify further freedom camping sites.

[107] Mr Campbell submitted, on this point, this case is materially the same as

Setefano v Maxwell.[23] In that case, the Minister of Immigration had refused an appeal

[23]       Setefano v Maxwell HC Wellington CP269/91, 2 September 1992.

under the Immigration Act 1987. It was submitted the Minister might have

inappropriately taken into account the applicant’s criminal convictions. There was

however a handwritten notation on the relevant summary of facts which recorded

“[t]hey should not therefore be taken into account”. The Court referred to that notation

and an affidavit of the Minister himself, which made it clear the Minister did not take

the convictions into account.

1. I consider Setefano is materially different precisely because in that case there

was affidavit evidence from the decision-maker that the irrelevant material had been

disregarded. There is no such evidence from the decision-maker in this case.

1. The decision the Council was required to make in this case was one which

involved a significant measure of policy but also required an extensive factual analysis

(by reference to the specific s 11(2) criteria) in relation to local authority areas where

the Council was considering restriction or prohibition. This was the reason for LGNZ

having established its Good Practice Guide, which QLDC was seeking to follow.

Having a sound evidential basis for the decision relating to each such area was of

fundamental importance. As explained by Cooper J in Thames-Coromandel the

requirement for a local authority to be “satisfied” under s 11(2)(a) is a requirement to

be “reasonably satisfied”.

1. I recognise, in relation to the four sites specifically considered by the Hearing

Panel, with discussion documented in the Panel’s Deliberation Report (above at [79]),

there is a reasonable inference the Council in making the bylaw adopted the Panel’s

detailed reasoning in relation to those sites. To that extent there is a basis for QLDC

to assert on the evidence that the irrelevant consideration of the property values factor contributing to the Xyst scoring on the area protection criterion was disregarded. But

there is no similar evidential basis for such a conclusion in relation to other sites. (In

relation to the Panel’s consideration of the Glenorchy Domain carpark, as one of the

four particular sites discussed in the Panel’s Deliberation Report, it cannot be

concluded that the Panel disregarded the amenity values factor, as the Panel continued

to view that factor as relevant — I discuss this further below at [152].)

1. Having regard to the whole of the evidence, I conclude the decision ultimately

taken by the Council to prohibit freedom camping at all but the Red Bridge, Luggate

site was tainted by the inclusion of an irrelevant consideration in the scoring of the

area protection criterion, namely the property values factor. That permeated the

Hearing Panel’s deliberations and report and carried into QLDC’s decision-making.

1. I will return below at [195] to consider the Court’s direction in relation to relief.

Issue 1B : Irrelevant consideration of the amenity values factor?

Discussion — the amenity values factor

1. Whereas the NZMCA had submitted in response to QLDC’s SOP that both the

economic values factor and the amenity values factor were irrelevant considerations,

QLDC accepted only that the economic values factor was irrelevant. In its subsequent

consideration and making of the 2021 Bylaw, QLDC continued to treat the amenity

values factor as a relevant consideration under the area protection criterion.

1. For convenience, I reproduce the way in which Xyst defined its amenity values

factor:
Protection of the amenity values of an area including residential and
commercial areas (e.g. protection of views from residential and commercial
properties, protection from noise from camping activity and arrival and
departure of campers, loss of privacy)
[115]	QLDC took advice from its solicitors in relation to the NZMCA’s submissions.

The Hearing Panel in its Deliberation Report (above at [74]) recorded, “having regard

to the Meredith Connell legal opinion” the Panel had “agreed that Council would not

consider economic impacts and effects on property values when deciding on each site”. QLDC chose in this proceeding not to produce a copy of the Meredith Connell

legal opinion — there is no evidence in relation to the content of the advice, whether

it covered both the economic values factor and the amenity values factor or whether

the Hearing Panel’s “agreement that the Council would not consider the economic

impacts and effects on property values” involved a full implementation of the legal

advice received. The highest it is stated in the evidence of Ms Galavazi is that “this

advice informed the Hearing Panel’s recommendations”.

The pleadings

1. The NZMCA, as the second aspect of its first cause of action, pleaded Xyst

and QLDC had regard to the protection of amenity values enjoyed from nearby

residential and commercial properties, which was an irrelevant consideration. By its

defence, QLDC admitted that pleading insofar as the Xyst Report had regard to the

amenity values factor identified in the Report and reproduced at [114] above. It is

accordingly common ground that Xyst’s scoring took into account the amenity values

factor for each site. It is also common ground that the Council in its decision-making

treated the amenity values factor as a relevant consideration.

“Amenity”

1. The expression “amenity values” does not appear in the FCA.

2. As recorded in the Xyst July report (above at [52]), Xyst had interpreted the

area protection criterion as involving the protection of six sets of values. In the case

of four “natural values”; “cultural values”; “water quality” and “recreational values”

the protection specifically referred to “protection of an area”.

1. In relation to amenity values and economic values, the concept of “an area”

was further defined by Xyst to include residential and commercial areas and impacts

on those areas.

[120] Xyst did not in its report otherwise define its use of the expression “amenity values”. QLDC’s evidence did not refer to any definition or understanding of the term. [121] I infer Xyst was using the expression to convey the same meaning as the

definition contained in s 2(1) of the RMA:

amenity values means those natural or physical qualities and characteristics

of an area that contribute to people’s appreciation of its pleasantness, aesthetic

coherence, and cultural and recreational attributes

[122] As such, “amenity values” can be taken to cover the full range of sensory

factors that contribute to perception and appreciation of an area’s character,

pleasantness, aesthetic coherence and identity.[24] Unattractive auditory, visual or

olfactory sensations will impact on an area’s amenity.

“The area” in s 11(2) of the FCA

[24] See Stephen Brown (ed) “The Assessment & Management of Amenity” NZAIA

[123] It is common ground the local authority areas in the District have amenity

values which can be the subject of protection under s 11(2)(a)(i) of the FCA. What is

in issue is whether “the area” whose amenity values may be protected under that

provision also includes nearby private “residential and commercial areas”.

1. The meaning of an expression — in this case “the area” — is to be ascertained,

under s 10 Legislation Act 2019, from its text and in light of its purpose and its context.

[125] Mr Page referred me to a number of documents from the FCA’s legislative

history. One of them might be considered to cast some light on the legislative purpose

in relation to the areas permitted to be protected under s 11(2) — the Select Committee

recommended amending the Freedom Camping Bill as it stood in 2011 to specify that

bylaws must be the appropriate and proportionate way of addressing problems (as

subsequently enacted in s 11(2)(b)). The Select Committee explained the

recommended amendment would clarify:

… for the avoidance of doubt, that local authorities could not make bylaws

absolutely prohibiting freedom camping in their districts. The bill is intended

to allow authorities to specifically restrict or prohibit freedom camping in

particular spots to protect the area or the health and safety of people visiting

the area, not to make blanket bans preventing people from freedom camping

anywhere in their districts …

In short, the Bill was stated to be intended to allow local authorities (by restrictions or

prohibitions) to “protect the area” and “to protect … people visiting the area”.

1. This pattern of protections is reflected in s 11(2)(a) as subsequently enacted

where “the area” is the expression used in relation to all three objects — protection of

the area, protection of visitors to the area, and protection of access to the area. The

expression “that area” in s 11(2)(b) (requiring the “most appropriate and

proportionate” response) clearly reflects the same “the area” as referred to in

s 11(2)(a).

1. The requirements identified in s 11(2) of the FCA relate to any bylaw made

under s 11(1). It is therefore necessary when considering the expression “the area” in

s 11(2) to consider it in the context of s 11(1). For convenience, I reproduce again the

provisions of subs 1:

(1)	A local authority may make bylaws—
(a) defining the local authority areas in its district or region where

freedom camping is restricted and the restrictions that apply

to freedom camping in those areas:

(b) defining the local authority areas in its district or region where

freedom camping is prohibited.

1. The term “local authority area” is defined for the purpose of the FCA in s 6.

Section 6(1) provides:

Meaning of local authority area

(1)	In this Act, local authority area—
(a) means an area of land—

(i)          that is within the district or region of a local authority;

and

(ii)         that is controlled or managed by or on behalf of the

local authority under any enactment; or

(b) includes any part of an area of land referred to in paragraph

(a); but

(c) does not include an area of land referred to in paragraph (a)

or (b) that is permanently covered by water.

[129] Accordingly, under s 6(1) of the FCA, there will be multiple

“areas of land”. It is to these multiple areas in the district (as they come to be defined

by the local authority) that s 11(1) is addressed. Section 11(1) permits the making of

bylaws restricting or prohibiting freedom camping in the areas a local authority

defines. Section 11(2), when it is read in this context, imposes a prerequisite (that one

or more of the three protection criteria is satisfied) before a bylaw is made in relation

to any of those defined areas.

1. In my view, it is clear “the area” as referred to in s 11(2) is that particular local

authority area which a local authority defines under s 11(1) for the purposes of

restricting or prohibiting freedom camping.

Submissions — QLDC

1. At the conclusion of his written submissions on the concept of “the area” as

used in s 11(2), Mr Page for the NZMCA recorded it “means an area owned or

controlled by QLDC”. He went on to record “it does not mean the area is touching or

adjacent to the land and certainly cannot include the private enjoyment of private

land”.

1. Mr Campbell, in his written submissions recorded the NZMCA had said “the

area” (in s 11(2)) is equivalent to “local authority area”. That was a misunderstanding

of the NZMCA submission. What both parties accept is that “the area” in s 11(2)

means that part of the “local authority area” that the local authority has defined under

s 11(1) for the purposes of restriction or prohibition.

1. Mr Campbell submitted the area protection criterion under s 11(2)(a)(i) — “to

protect the area” — is nevertheless “sufficiently broad to permit of consideration of

the impact of the s 11(2) factors on the surrounds and adjacent to that area”.

1. Mr Campbell submitted four particular matters support this interpretation:

(a) Parliamentary intent — it should be assumed Parliament intended to be

careful in its drafting. Whereas “local authority area” was defined, the

undefined “area” permits a broader and different interpretation;

(b) Policy — as a matter of policy, Parliament should be taken to have been

cognisant of other legislative frameworks in place (such as for traffic,

roads, landscape, rivers, water and individual people living within a

district);

(c) LGA — section 145 of the LGA also confers on territorial authorities

powers to make bylaws for their districts to protect the public from

nuisance; to protect, promote and maintain public health and safety and

to minimise the potential for offensive behaviour in public places. Mr

Campbell added that s 10 of the FCA states that freedom camping is

permitted unless restricted or prohibited by the FCA or (referring to

s 10(3)(c)) “under any other enactment”.

(d) Absurdity — if a local authority cannot consider the impact on the

amenity of neighbouring properties, there would be at least four absurd

limitations on the local authority’s considerations, namely that the

authority could not consider:

(i) the risk of freedom campers disposing of waste (human and

other) on land immediately adjacent to a local authority area;

(ii)        the risk of freedom campers camping next to dangerous sites

such as New Zealand Transport Agency highways and railway

crossings;

(iii)       the risks of freedom campers creating noise nuisance, such as

by traffic movements;

(iv)       the risk that human waste from freedom campers will enter

waterways (which, under s 6(1)(c) are not local authority areas).

1. Mr Campbell submitted a broad interpretation of the provisions of the FCA as

supported by the Government’s purpose in introducing the Bill — explained by the

Minister as being “to address the negative effects of freedom camping”.[25]

[25]       9 June 2011, 673 NZPD 19262. See also Report of the Department of Conversation and the

[136] Mr Campbell referred to the legislative materials which emphasised the

community’s interest in the decision-making that would be required under the new

legislation. The Department Report identified that under the Bill “it is up to the

relevant local authority and its community to decide what restrictions should apply to

a particular site”.[26] Equally, in relation to the bylaw-making power, the Departmental

Report commented “the contents of bylaws are up to each local authority and its

community to decide within the parameters provided by legislation”[27] and, finally, the

Departmental Report recorded “it is important that local communities have the ability

to be involved in the making of bylaws that affect them, as provided by the special

consultative procedure”.[28]

[26]       Departmental Report, above n 25, at 26.

[27]       At 28.

[28]       At 29.

[137] In Mr Campbell’s submission, the legislative materials indicate local

authorities were left to determine what is necessary to protect an area, which includes

taking account of the views of the community by use of the SCP, as QLDC did.

1. Mr Campbell referred to the submission he had made as to the “wide” degree

of policy involved which the Court should be slow to interfere with.

Submissions — NZMCA

1. For the NZMCA, Mr Page submitted, as a matter of interpretation, the area to

be protected under s 11(2)(a)(i) must be that part of the local authority area defined by

the local authority for restriction or prohibition purposes. That area does not include

an adjacent area that is not “local authority area”.

1. Mr Page noted the Parliamentary materials do not, in their discussion of the

mischief involved, refer to neighbouring properties or adjacent areas — the focus of

those discussions is entirely on what campers do and leave on the sites they are using.

[141] Mr Page observed that behaviour which falls within a broad concept of

offensive behaviour — impacting on auditory, visual or olfactory sensations or

involving property damage — is regulated by a raft of other legislation. Mr Page

referred to the Summary Offences Act 1981; the Litter Act 1979; and District Plans

administered under the RMA. Such inappropriate behaviour was already regulated

long before the enactment of the Freedom Camping Act. There was no suggestion the

Freedom Camping Act was intended to replicate those functions.

Discussion

1. The plain meaning, in its context, of “the area” as referred to in s 11(2)(a) is

that it is the specific local authority area defined by the local authority for the purpose

of making a bylaw.

1. Nothing in the Parliamentary materials requires the plain meaning of the words

used in s 11 to be given an expanded meaning. Parliament’s focus clearly was on local

authority areas used by campers. Through legislation, Parliament selected a

mechanism under s 11(2)(a)(i) — the area protection criterion — by which defined

areas could be protected. Similarly, under the succeeding two criteria it provided for

the protection of the health and safety of people who visited those defined areas and

for the protection of access to those defined areas. The term “the area” used thrice in

s 11(2)(a) must logically have the same meaning in each instance. Were “the area” to

have a meaning which included areas outside the local authority area, the consequence

under subs (2)(a)(ii) and (iii) would be that Parliament must also be taken to have been

providing mechanisms to protect access to those neighbouring areas and to protect the

health and safety of people who were visiting those neighbouring areas.

1. In my view, there is in s 11(2) a specific focus upon defined sites within the

local authority area as defined under s 11(1).

1. As the means of enforcing appropriate behaviour at freedom camping sites, the

legislation contained (in pt 3) detailed provisions creating offences, penalties, and

liability for damage. There is a strong inference that through those means the local

authority areas at which freedom camping was permitted would be capable of

regulation at a level that appropriately mitigated the mischief the legislation was

designed to deal with.

1. I do not consider an interpretation that requires the focus to be on protection of

the defined (local authority) area to lead to the absurdities Mr Campbell would

suggest. The health and safety risks Mr Campbell raises in relation to adjacent areas

such as highways are to be taken into account by the local authority under

s 11(2)(a)(ii). The discharge of waste is responded to in the FCA by the creation of an

offence under s 20(1)(e)(ii). It may also be an offence under s 15(1) of the RMA and

likely constitutes offensive behaviour under the Summary Offences Act. Similarly,

the playing of unacceptably loud music is the subject of noise control sanctions under

s 327 of the RMA.

1. With all these protections already in place for the community generally, it does

not produce an absurdity to interpret the focus of the area protection criterion as the

defined local authority area itself.

1. “Protecting the area” in terms of s 11(2)(a)(i) of the FCA was to be achieved

by protecting the defined site within the district — inherently that was likely to have

benefits for those in neighbouring areas but their “areas” are not the defined (local

authority) areas which are the focus of the area protection criterion.

1. The input the residents of a district will have into a local authority’s decision-

making concerning a bylaw under the FCA flows out of the standard consultation

provisions of the LGA. It applies in the same way in relation to freedom camping as

it does to any other legislation to which the SCP set out in s 83 of the LGA applies.

Through the residents’ right to present community views under the LGA, residents are

enabled to express their views and preferences in relation to both general concepts and

specific matters such as whether a freedom camping bylaw is required for one of the

three protection purposes. But, contrary to the tenor of Mr Campbell’s submission, the fact the community through the SCP will have the right to express their views and

preferences in relation to a proposed bylaw (under the standard LGA regime) does not

detract from or otherwise flavour the local authority’s obligation to apply the statutory

tests identified in the FCA, including the protection purposes identified in s 11(2)(a).

[150] The amenity values factor as scored by Xyst as part of the area protection

criterion, and as treated by QLDC as relevant information, is addressed in significant

part regarding the protection of the amenity values of neighbouring residential and

commercial areas (particularly in relation to impact on views, noise, and loss of

privacy).

[151] Unlike in relation to the economic values factor, QLDC (upon the

recommendation of the Hearing Panel) treated the amenity values factor (and Xyst’s

scoring of that factor), as a relevant consideration when deciding whether it was

satisfied that a bylaw was necessary under s 11(2) of the FCA.

1. I return to the example of Xyst’s scoring in relation of the Glenorchy Domain

carpark (discussed above at [48] and [78]). I reproduce the relevant line from Xyst’s

scoring:

Site name	Protect area	Protect H & S	Protect access	Total score
Glenorchy	4	1	4	60%
Domain,
Glenorchy

[153] The Hearing Panel changed the proposed bylaw from permitting freedom

camping at the Glenorchy Domain carpark to freedom camping being prohibited.

Xyst’s scoring (four for area protection, one for health and safety protection, and four

for access protection — a total score of nine) was at the threshold margin for

prohibition. Had Xyst revisited its scoring to eliminate any weighting for the

irrelevant consideration of the amenity value factor, to reduce the score of four, Xyst

would have classified this site as “acceptable with controls”.

1. Having regard to the whole of the evidence, I conclude the decision ultimately

taken by the Council to prohibit freedom camping at all but the Red Bridge, Luggate

site, was tainted by the inclusion of a second irrelevant consideration in the scoring of the area protection criterion, namely the amenity values factor. That permeated the

Hearing Panel’s deliberations and report and carried into the Council’s decision-

making.

Issue 2 : Insufficiency of evidence

Submissions

1. In Mr Page’s submission, if the Court were to accept that the Council’s decision

considered irrelevant factors, then it followed there was insufficient evidence on which

the Council could base a lawful decision. That was particularly so in this case, he

submitted, because restriction or prohibition of freedom camping in particular areas

may only be made the subject of a bylaw if the local authority is satisfied the bylaw

was necessary for one of the three s 11(2)(a) protections. As noted by Cooper J in the

Thames-Coromandel case, above at [19], “satisfied” in such a context means

“reasonably satisfied”.

1. Mr Campbell, in his submissions, emphasised QLDC’s repeated formula that

the Xyst report was but one tool utilised by the Council. Mr Campbell referred to the

“wealth of other information in the hands of QLDC throughout its decision-making

process”. He cited the passage in Ms Galavazi’s December Agenda Report referred to

at [81] above.

Discussion

1. I do not consider anything in this case turns on whether the centrality of Xyst’s

score for each site, with its weighting for the economic values factor, leads to a finding

of invalidity because of the irrelevancy of the factor or because there was insufficient

other evidence for the Council to be satisfied of the s 11(2) criteria. At the heart of

QLDC’s flawed process, on either cause of action, was QLDC’s reliance on Xyst’s

scoring. Both causes of action can be considered as resting on the proposition QLDC,

on the evidence before it, could not be reasonably satisfied a bylaw was necessary for

the protection of the sites it found required protection under s 11(2)(a)(i) of the FCA.

Issue 3 : failure to provide relevant information under s 82 LGA

The LGA regime

1. Under s 83AA of the LGA, a summary of information contained in SOP must

be a fair representation of the major matters in the statement of proposal.

1. Principles of consultation the LGA include:

(a) that persons who will or may be affected by, or have an interest in, the

local authority’s decision should be encouraged by the local authority

to present their views to the local authority (under s 82(1)(b)):

(b) 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 consideration of views presented (under

s 82(1)(c)):

(c) that persons who wish to have their views on the decision or matter

considered by the local authority should be provided by the authority

with a reasonable opportunity to present those views to it in a manner

and format that is appropriate to the preferences and needs of those

persons (under s 82(1)(d)).

1. There is a recognised need for the Court to take a generous approach to local

authority decision-making — if it can reasonably be inferred the authority has

followed a decision-making process, then the Court will do so. But, as Grice J

observed in Marlborough District Council, consultation is not just a process:[29]

It exists to promote fair decision-making. It allows interested parties to have

input into the decision-making.

[29]       Marlborough District Council, above n 13, at [65].

[161] Mr Page submitted the local authority’s process in Marlborough District

Council is an example of a situation in which the local authority did not exercise its

discretion as to the appropriate manner in which it should consult before making a

decision which was significantly different to that contained in the proposal on which

it had originally consulted.[30] This Court concluded that constituted a breach of the

Council’s consultation obligations under s 82 of the Act.

[30] At [71].

1. In reaching that conclusion in Marlborough District Council, Grice J found on

the facts there was an analogy to be drawn with what had happened in Nelson

Gambling Taskforce Inc v Nelson City Council.[31] The Judge explained that in the

Nelson Gambling case the Council’s notified proposal was to tighten the gambling

policy and restrict the number of gaming machines, whereas the Council ultimately

decided to loosen the policy by not restricting the number of gaming machines.

[31]       At [63] citing Nelson Gambling Taskforce Inc v Nelson City Council HC Nelson CIV-2010-442-

[163] In Marlborough District Council, the Council decided after the public

consultation had closed to adopt a district-wide blanket prohibition on responsible

camping in all but five restricted areas, which marked a significant change of approach

from the proposal consulted on. Grice J explained it was not the failure to reconsult

that was the issue but rather the failure to consider the method of consultation when a

significant change to the proposal which had been consulted on was put on the table.

There was no material that would allow the Judge to infer the Council had turned its

mind to the issue of reconsultation.[32]

Submissions

[32] At [68].

1. Mr Page submitted the 2021 Bylaw was a materially different bylaw to what

the Council had consulted on. He submitted that, as in the Marlborough District

Council, the Council had failed to exercise its discretion in relation to reconsultation

following its change of approach. He submitted the Council’s failure occurred at two

particular points in December 2021, namely:

(a) on 13 December 2021 when the Hearing Panel in its Deliberations

Report agreed, in response to the NZMCA submission, that the Council would not consider the economic values factor when deciding on each

site;

(b) 16 December 2021 when QLDC adopted the 2021 Bylaw, with the Red

Bridge, Luggate as the single site in the district in which freedom

camping would be permitted.

1. Mr Page referred to the concluding statement in paragraph 19 of the SOP as

publicly notified in August 2021 (above at [68]) that “[t]he [Xyst] report found that

the current controls under the current [2019] Bylaw are generally appropriate with a

few minor alterations”.

Discussion

1. The alterations that occurred to the proposed 2021 Bylaw in this case were of

a substantially different quality to the changes that occurred in Marlborough District

Council and the Nelson Gambling case. In each of those, the changes introduced

affected the overall approach adopted in the bylaw. Here, the basic approach and

regime adopted in both the 2019 and 2021 Bylaws remained substantially the same —

that is what the concluding comment in paragraph 19 of the SOP (above at [68]) was

identifying.

1. The significant alteration to the proposed bylaw in this case (eliminating four

of the five identified sites) came about as a result of the Hearing Panel’s deliberations

followed by the Council’s decision. The very purpose of QLDC’s retention of Xyst to

undertake it specific site assessments was to provide the basis upon which QLDC

could consult and ultimately make its decision. All submitters had the opportunity,

with full information as to Xyst’s assessments and of QLDC’s proposed bylaw, to

make both site-specific submissions and broader submissions as to such matters as the

correct legal approach and matters of policy.

1. That the consultation process was effective in eliciting informed submissions

is evidenced by the very fact the NZMCA made submissions as to errors in the legal

approach under s 11(2) of the FCA. In relation to site-specific matters, there were

always three potential outcomes in finalising the 2021 Bylaw — the adoption of the bylaw as proposed; an increase in the availability of permitted freedom camping sites

(if the views of those favouring expansion found favour); or greater limitation on the

availability of freedom camping sites (if those with concerns about freedom camping

or specific sites held sway).

[169] In these circumstances, NZMCA has not established that QLDC failed to

appropriately exercise its discretion in relation to consultation under the LGA.

Issue 4 : failure to consider relevant considerations under ss 11(2)(b) and 11(2)(c)

of the Act

The legal requirements

1. Much of the focus to this point of the judgment in relation to the bylaw-making

power under s 11(2) of the Act has been on the criteria under s 11(2)(a).

1. There are two further requirements under s 11(2) which I reproduce:

(2) A local authority may make a bylaw under subsection (1) only if it is

satisfied that—

(a)	…
(b)	the bylaw is the most appropriate and proportionate way of

addressing the perceived problem in relation to that area; and

(c) the bylaw is not inconsistent with the New Zealand Bill of Rights

Act 1990.

Pleadings

1. The NZMCA’s pleading is that the 2021 Bylaw is ultra vires because QLDC

failed properly or at all to consider whether the bylaw complied with the requirements

of subs (b) and (c).

[173] The NZMCA further pleaded the December Agenda Report did not provide

any basis on which the Council could be satisfied of the subs (b) and (c) matters.
[174] QLDC denied it had failed to consider subs (b) and (c) matters and further

pleaded the SOP (forming part of the December Agenda Report) expressly considered

subs (b) and (c) matters.

Submissions

1. Mr Page focused his submissions on the Council’s consideration of the 2021

Bylaw at its 16 December 2021 meeting. He submitted any earlier consideration given

to the subs (b) and (c) requirements at the time the SOP was drafted no longer had

application when QLDC at its December meeting adopted a bylaw which was

“materially different” from the draft bylaw provided with the SOP. Mr Page submitted

it cannot be the case that QLDC properly satisfied itself of the subs (b) and (c) matters

by considering them in relation to a version of the bylaw that was not adopted, and

was considerably less restrictive than the 2021 Bylaw.

1. He submitted the “bare recital of the statutory test” recorded in the Council’s

16 December 2021 resolution without any record of reasons, does not equate to

evidence QLDC had indeed reached such a determination in relation to the 2021

Bylaw as adopted.

Discussion

1. The NZMCA has not established QLDC failed to consider the subs (b) and (c)

matters.
[178]	The requirement for the Council to be satisfied of those matters was the subject

of consistent reminders by Ms Galavazi at appropriate points throughout QLDC’s

process. It was the subject of extended discussion in the SOP as approved by QLDC

at the time of the draft bylaw. The need for the Council to be satisfied in relation to

these requirements was again identified in the December Agenda Report and was a

subject of QLDC’s resolution at the 16 December 2021 meeting.

[179] There is no basis on the evidence to doubt the Councillors failed to satisfy

themselves in relation to the subs (b) and (c) requirements as recorded in the

resolution.

1. Mr Page’s submission came close to suggesting, absent a record of specific

reasoning in support of the subs (b) and (c) determinations, the Court should find the

Council had not considered the subs (b) and (c) considerations. I do not view the

absence of reasons in relation to these two considerations as detracting from the

evidence which cogently points to these matters having been correctly brought to the

Council’s attention specifically in relation to the freedom camping bylaw and having

been matters of which the Council was satisfied.

Issue 5 : the bylaw as an inappropriate and disproportionate way of addressing

a perceived problem

Pleading

1. This fifth cause of action alleges (as does the fourth cause of action in part) a

breach of s 11(2)(b) of the Act. Rather than alleging the Council failed to consider

s 11(2)(b) (as in the case of the fourth cause of action) the NZMCA here pleads the

2021 Bylaw was not an appropriate and proportionate response to the perceived

problem in the area, and the bylaw is therefore ultra vires.

Evidence

1. In support of his submissions on this issue, Mr Page referred to Mr Johnson’s

affidavit. I quote his submission:

Mr Johnson identifies “a paucity or even an absence of evidence to support

the claims being made to justify a recommendation for prohibiting rather than

restricting freedom camping”. He says that claims of effects have been made

without any supporting information. In his opinion this absence of evidence

of a problem makes it difficult to justify prohibitions on individual sites and

means that the decisions to do so are disproportionate responses to what are

often perceived but unsubstantiated problems.

Submissions

1. Mr Page, having referred to Mr Johnson’s critique of QLDC’s approach to the

evidence it had, emphasised there are no examples in the Hearing Panel’s Deliberation

Report where the accuracy of Xyst’s assessment was questioned where Xyst

recommended prohibition, whereas the Panel did disagree with Xyst’s assessment in relation to several proposed sites for freedom camping. Mr Page submitted this was

“unreasonable and disproportionate”.

1. Mr Page submitted the identification of only one restricted freedom camping

site also represented a disproportionate approach in relation to visitor demand in the

area.[33]

[33]       Mr Johnson recorded the District experience 137,000 visitor nights in the 2019/2020 year — were

[185] Mr Page concluded it is difficult to see how a council of the most popular

tourist region in the country, acting reasonably, could be satisfied that providing only

one freedom camping site is the most appropriate and proportionate way of addressing

concerns about freedom camping in the district.

Discussion

1. As indicated by Mr Page’s final observation, the submissions in relation to this

fifth cause of action essentially invite the Court to conclude QLDC’s determination

that the 2021 Bylaw was the most appropriate and proportionate way of addressing

the perceived problem in the area was “unreasonable” in the administrative law sense.

I do not consider it appropriate, in the absence of a pleading to that effect or an

application for leave to amend the pleading, to consider the matter by reference to

“unreasonableness”.

[187] The NZMCA’s pleading of its fifth cause of action was that, in terms, “the

Council adopted a bylaw which was an inappropriate and disproportionate response to

the perceived problem in the area …”. This cause of action as pleaded invites the

Court to embark on a factual review to ascertain whether the Court agrees with the

factual determination reached by QLDC. Mr Page’s reliance on Mr Johnson’s

affidavit, with its reference to matters such as “a paucity … of evidence” indicates the

nature of the proposed task. That is not an appropriate enquiry for the Court to

undertake in the context of judicial review and I do not do so.

Issue 6 : (affirmative defence) : unreasonable delay?

Pleadings

1. QLDC pleaded unreasonable delay as an affirmative defence. It recorded the

time lag between commencement of the 2021 Bylaw (17 December 2021) and the

NZMCA’s commencing this proceeding (21 December 2022). QLDC recorded the

NZMCA had previously advised this Court in February 2022 a new proceeding would

be filed in relation to the 2021 Bylaw. QLDC pleads the NZMCA failed to diligently

pursue its review application and that, were the Court to revoke the 2021 Bylaw,

QLDC will be prejudiced because:

(a) it will be required to contact and refund payments to all who infringed

the bylaw (many of whom may no longer be resident in New Zealand);

and

(b) the District will be without regulation of freedom camping until QLDC

can complete the special consultative procedure to adopt a new bylaw.

1. The NZMCA denied there has been unreasonable delay.

Evidence

1. Ms Galavazi in her affidavit did not speak to any consequences arising from

the NZMCA’s delay in commencing this proceeding.

1. For the NZMCA, its Chief Executive, Bruce Lochore, provided evidence in

relation to the delay. Mr Lochore explained the NZMCA did not immediately file the

proceeding after the adoption of the 2021 Bylaw because the Government had

announced a review of the FCA and was preparing to introduce a Bill in 2022. It was

anticipated there would be a new definition of “self-contained vehicle” which might

have significance for QLDC. Mr Lochore noted that one of QLDC’s resolutions at its

16 December 2021 meeting was that the Council would undertake a review of any

legislative changes to determine whether amendments were required to the 2021

Bylaw. Mr Lochore noted QLDC then (in 2022) received $450,000 Government

funding to (inter alia) review the 2021 Bylaw. In swearing his affidavit in September 2023, Mr Lochore recorded the Self-contained Motor Vehicles Legislation Act 2023

received assent on 6 June 2023, but QLDC had not indicated by September 2023

whether it would be reviewing the 2021 Bylaw.

Submissions

[192] Mr Campbell in his submissions identified the pleaded period of delay was

approximately one year from the date of the 2021 Bylaw until the NZMCA

commenced this proceeding. Mr Campbell suggested there was a further relevant

delay, that being between the commencement of the proceeding (December 2022) and

the hearing date (9 June 2024).

1. Mr Campbell observed the 2021 Bylaw had by the time of the hearing been in

place for a lengthy period.

[194] Mr Campbell referred to cases in which delay in bringing proceedings was

discussed:

(a) Middledorp v Avondale Jockey Club Inc[34] — identifying that a

[34]       Middledorp v Avondale Jockey Club Inc [2020] NZCA 13 at [30].

declaration is more likely than other forms of relief to be granted where

there has been delay but that relief will not normally be refused on the

grounds of delay where that delay has not caused any prejudice to the

respondent;

(b) Williams v Auckland Council[35] where the Court of Appeal held that

[35]       Williams v Auckland Council [2015] NZCA 479 at [102]–[103], citing Eastern Services Ltd v No

what is ultimately required when considering delay as a factor

disqualifying relief is a balancing of competing rights and equities —

as described by the Court, the question is whether with knowledge of

the facts giving rise to a right of action the owners had by their

inactivity placed the Council in a position where it would be inequitable

or unreasonable if the remedy were later asserted.

Discussion

1. The Court of Appeal’s discussion of the significance of delay in Williams v

Auckland Council is instructive, although the matter under challenge there was not the

validity of a bylaw but the alleged failure of the Council to offer back land earlier

acquired compulsorily.

1. The Court of Appeal explained in Williams that delay of itself is not enough to

bar relief but nor is it necessary for the Council to show material prejudice or

detriment. That said, the absence of such prejudice or detriment may make it difficult

for the Council to establish that relief should not be granted.

[197] This is not a case where the applicant is in the position of, for example, a

property owner who failed to act in response to administrative actions affecting their

land while others may have been relying on the validity of those administrative

actions. Here, the persons whose interests the Council represents have had (since the

2021 Bylaw was adopted) the full benefit of the restrictions and prohibitions created

by the bylaw. The Council has been well informed from a very early point of the

NZMCA’s intention to challenge the 2021 Bylaw unless the imminent legislative

changes were to lead to a modification of the bylaw that the NZMCA considered

appropriate. To the extent that prejudice to QLDC or others is relevant, there is an

absence of cogent evidence adduced by QLDC to establish there has actually been

such prejudice. There was, for instance, no evidence adduced by QLDC to indicate

the extent to which (if any) QLDC had imposed fines for infringements under the 2021

Bylaw which might need to be refunded if the 2021 Bylaw is quashed.

1. I am not satisfied the issues of delay raised by QLDC are such as would justify

the denial of relief.

1. What is appropriate, as counsel jointly submitted, is that the Court upon being

satisfied the 2021 Bylaw was invalidly adopted, should make a declaration to that

effect but then hear submissions from counsel as to the appropriate form of relief.
Outcome

1. I order:

(a) there is a declaration that the respondent’s decision to adopt the 2021

Bylaw is invalid;

(b) the parties are to file written submissions as to any additional relief that

should be granted and as to costs and disbursements (if not agreed), the

applicant to file and serve its submissions within 20 working days (20

page limit) and the respondent to file and serve its submissions within

10 working days thereafter (same limit).

Osborne J

Solicitors:

Gallaway Cook Allan, Dunedin

Wynn Williams, Christchurch

SCHEDULE A

SCHEDULE B

SCHEDULE C

Judgment:  20 September 2024

JUDGMENT OF OSBORNE J

Introduction

1. Parliament, through the enactment of the Freedom Camping Act 2011 (FCA),

made provision for the regulation of freedom camping in a number of areas, including

land controlled or managed by local authorities.

1. The Queenstown Lakes District Council (QLDC) is the local authority for the

Queenstown Lakes District (District).

1. QLDC first made a bylaw for freedom camping in 2019 (2019 Bylaw). The

2019 Bylaw was the subject of a judicial review application on the part of the New

NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v QUEENSTOWN LAKES

DISTRICT COUNCIL [2024] NZHC 2729 [20 September 2024]

[1]; Aorangi School Board of Trustees v Minister of Education [2010] NZAR 132 (HC) at [8].

Services Association v Hamilton City Council [1997] 1 NZLR 30 (HC) at 36.

(2nd ed, Thomson Reuters, 2016) at ch 40.

[2014] NZHC 2016 [Thames-Coromandel District Council].

[Marlborough District Council].

“54%”.

Xyst’s finalised report (the Xyst July report, below at [53].

counsellors who formed the Hearing Panel.

<

Department of Internal Affairs to the Local Government and Environment Committee (7 July

2011) at 19262–19263 [Departmental Report].

368.

the Red Bridge (as the single freedom camping site) to accommodate that demand it would have

to host 375 visitors per night.

68 Ltd [2006] NZSC 42, [2006] 3 NZLR 335 at [34].