Whangarei District Council v Director-General of Health
[2025] NZHC 616
•21 March 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-000130
[2025] NZHC 616
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER OF
an application for judicial review of a direction made by the Director-General of Health under s 116E(1) of the Health Act 1956
BETWEEN
WHANGAREI DISTRICT COUNCIL
Applicant
AND
DIRECTOR-GENERAL OF HEALTH
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 18 March 2025 Counsel:
J A Browne and J Cartwright for Applicant
J N E Varuhas, S Deng, and R Gavey (via VMR) for Respondents
Judgment:
21 March 2025
JUDGMENT OF GRAU J
Introduction
[1] The applicant, the Whangarei District Council (the Council), seeks interim orders that would prevent the Director-General of Health taking any enforcement action against it if it does not begin to fluoridate its water supplies by 28 March 2025. The Council is required to fluoridate pursuant to a direction by the Director-General of Health made in 2022 (the Direction), under s 116E of the Health Act 1956.
WHANGAREI DISTRICT COUNCIL v DIRECTOR-GENERAL OF HEALTH [2025] NZHC 616 [21 March 2025]
[2] The Council does not agree with the Direction. It has filed two separate proceedings: one on 14 February 2025, being declaratory proceedings which seek a review of the merits of the science underpinning fluoridation of water supplies, and another on 21 February 2025 seeking judicial review of the Direction. The Council seeks the interim orders to apply until its proceedings are determined. The Council says that, based on expert evidence it has obtained, if it is forced to add fluoride to the water it supplies to its community it will breach its obligation under the Water Services Act 2021 to provide safe drinking water to its community. The Council’s position is that fluoridation at the level required by the Direction poses a serious risk of injury to the public, particularly pregnant women and babies.
[3] The respondents, the Director-General of Health and the Attorney-General, oppose interim relief. Their position is that the Council is under a mandatory duty to comply with the Director-General’s direction. They say that the Court should not grant orders on the eve of the date when the Council must begin fluoridation as that would enable the Council to pursue an unlawful course of action and insulate the Council from the consequences of doing so. The respondents submit that a grant of interim relief would also be contrary to Parliament’s intention; severely prejudicial to the public interest; and that the Council’s substantive claim lacks merit.
Background
[4] Fluoridation of public water supplies began in New Zealand over 50 years ago, with the purpose of improving oral health. Approximately half of New Zealand’s public water supplies is fluoridated, including major urban centres.
[5] The Council is the local authority for Whangarei District, home to approximately 100,000 residents. As part of the services it provides to its district, the Council supplies about two-thirds of residents with drinking water from four water supply areas—namely Whangarei, Bream Bay, Mangakaramea and Mangapai via seven water treatment plants (WTPs).1 The water supplies in the Whangarei District have never been fluoridated.
1 Whau Valley, Ruddels and Poroti WTPs for Whangarei, Ruakaka and Ahuroa WTPs for Bream Bay, and Mangakaramea WTP and Mangapai WTP for their respective water supply areas.
[6] In the past the decision whether or not to fluoridate a water supply was made by the local authority. However, on 31 December 2021, Parliament passed the Health (Fluoridation of Drinking Water) Amendment Act 2021. This amending Act introduced pt 5A and sch 1AA into the Health Act, which enables the Director-General of Health to direct local authorities to add (or not add) fluoride to drinking water and requires the local authorities to comply with the Director-General’s direction.2 The decision to fluoridate was consequently transferred from local authorities to the Director-General of Health.3 Parliament did so to ensure that decisions about fluoridation were based on scientific and public health expertise which local authorities do not possess. It was also a response to the pressure local authorities had come under from groups opposed to fluoridation.4
[7] The insertion of pt 5A also resulted in the creation of a criminal offence for a local authority that fails to comply, or permits a failure to comply, with a direction to fluoridate, the penalty for which is a $200,000 fine and a further $10,000 fine for each day the failure to comply continues.5
[8] On 27 July 2022, the Director-General directed the Council (along with 13 other local authorities) under ss 116E(1) and 116F(2) of the Health Act 1956 to fluoridate the Whangarei drinking water at between 0.7–1.0 parts per million (ppm) (the Direction) by:
(a)31 December 2023 for the Whau Valley WTP and Ruddells WTP;
(b)31 December 2025 at Poroti WTP; and
2 See Health Act 1956, s 116E.
3 The original version of the Amendment Act provided for the decision to fluoridate to be made by District Health Boards. However, the decision-maker became the Director-General in order to “seek a nationally consistent approach” and because the Director-General was an “…official who is resourced and equipped to make the decision and take the science of fluoride away from being litigated in every part of the country.” (26 October 2021) 755 NZPD 5639.
4 (6 December 2016) 719 NZPD 15531; Ministry of Health Regulatory Impact Statement: Transferring decision-making on the fluoridation of drinking-water from local authorities to district health boards (21 March 2016); Ministry of Health Departmental Disclosure Statement: Health (Fluoridation of Drinking Water) Amendment Bill (2 November 2016).
5 Health Act, ss 116I, 116J and 116K. It is a strict liability offence; it is not necessary to prove an intention to commit the offence, but there is an available defence of lack of intention to commit the offence and the taking of all practicable steps to prevent commission of the offence.
(c)30 June 2024 at the Bream Bay supply.
[9] In a letter dated 28 March 2023, the Director-General modified the Direction, by extending some of the deadlines. The Director-General also reminded the Council that contravention or permitting contravention of a direction to fluoridate constitutes an offence.
[10] On 12 June 2023, an advocacy group, New Health New Zealand Incorporated, filed a statement of claim seeking judicial review of the Director-General’s directions to the 14 local authorities to fluoridate (the New Health proceeding). The claim was brought on the grounds that the directions to local authorities breached the right to refuse medical treatment in s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA), were based on mistakes of fact, were irrational, and that the Director- General failed to turn his mind to whether the directions were a reasonable limit on s 11, failed to adequately consider the oral health of the populations affected, failed to adequately consider the costs of fluoridation, and failed to consider a direction not to fluoridate.
[11] In a hearing on 18 September 2023, the High Court considered the preliminary issue in the New Health proceeding of whether the Director-General failed to turn his mind to whether the directions to fluoridate were a reasonable limit on the right to refuse medical treatment. In a decision dated 10 November 2023, Radich J determined that the Director-General was required to consider whether the directions were a reasonable limit on s 11 of NZBORA, and had failed to do so.6
[12] In a subsequent decision in February 2024 regarding relief consequent on the failure to consider NZBORA, Radich J directed the Director-General to reconsider the directions to fluoridate and assess whether they were a reasonable limitation on the right to refuse medical treatment.7 His Honour, however, declined to quash the directions, on the basis of the potential for significant prejudice to public
6 New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183.
7 New Health New Zealand Inc v Director-General of Health [2024] NZHC 196.
administration, prejudice to third parties, and events subsequent, with particular regard had to the fact that funding had been provided for capital works on fluoridation.8
[13] Following the February 2024 relief decision in the High Court, the Director- General informed the Council that the Direction was still in force.
[14] In the meantime, on 13 October 2023, the Ministry (which had agreed to provide funding for local authorities directed to fluoridate) and the Council had signed an agreement for community water fluoridation capital works. The total funding the Ministry committed to the Council was $4,557,856.88. Currently $2,278,928.44 has been paid, and the remainder will be paid once fluoridation has started. The agreement requires the Council to repay the funding if fluoridation does not start.
[15] Justice Radich’s November 2023 decision has been appealed to the Court of Appeal, to be heard by a full court in June 2025. The remaining issues in the New Health proceeding will be determined once the preliminary matter concerning consideration of s 11 of NZBORA has been finally determined.
[16] On 3 May 2024, the Director-General received a letter from the Council’s Chief Executive seeking an extension of the Direction to 28 March 2025 on the basis of uncertainty due to the High Court’s decisions. The Director-General granted the extensions but did so on the basis of allowing more time for completion of capital works and commission plants, not legal uncertainty. The new deadlines for fluoridation to start were:
(a)28 March 2025 for the Whau Valley, Ruddells, Ahuroa and Ruakaka WTPs; and
(b)30 June 2026 for the Poroti WTP.
[17] On 28 November 2024, a majority of the elected members of the Council passed a resolution “not to add fluoride to the [Council’s] water supplies as required by the directive from the Ministry of Health”. The resolution stated that the decision
8 At [29]–[30].
was based on “recent court rulings and research that question the effectiveness, safety and legality of fluoridation”.9
[18] On 3 December 2024, the Director-General confirmed the Direction following her consideration of NZBORA which concluded the Direction was a justified limitation on the right to refuse medical treatment.
[19] On 6 December 2024, the Director-General advised the Council that the Direction created a mandatory legal obligation on the Council to fluoridate to the required level by 28 March 2025, and reiterated that it was an offence to contravene the Direction.
[20] On 18 December 2024, the Council resolved to seek an extension from the Director-General for compliance with the Direction until the New Health NZ judicial review against the Director-General was finally decided and did so via a letter dated 20 December 2024. The Council stated the basis of its request as being “serious conflicting views on the safety and effectiveness of community water fluoridation”. It noted that Whangarei had never fluoridated, and that a referendum on fluoridation in 2002 was clearly against it. The Council also advised that it had resolved to pursue other measures, including an application for an interim injunction, if an extension was not granted.
[21] On 30 January 2025, the Director-General declined the Council’s request for an extension, stating:
For the reasons detailed in the evidence review conducted to inform my Bill of Rights Act analysis, I reject the view that there are serious conflicting views of the safety and effectiveness of community water fluoridation. At the levels of fluoride required to be used for community fluoridation in New Zealand, I am satisfied that a strong and longstanding body of evidence demonstrates that community water fluoridation is safe and effective.
[22] On 12 February 2025, following an extraordinary meeting, the Council declined to revoke its 28 November 2024 resolution not to fluoridate, and resolved to
9 Food & Water Watch Inc v US Environmental Protection Agency (US District Court, Northern District of California, 17-cv-02162-EMC, 24 September 2024) [US Fluoride Case] in which the Court found that fluoridation of water at 0.7mg/L posed an unreasonable risk of injury requiring the regulator, the Environmental Protection Agency, to engage with a regulatory response.
commence proceedings challenging the Direction, seek urgent interim relief, and confirm instructions to the Council’s lawyer. As already noted, the Council commenced two sets of proceedings in February 2025 and applied for interim orders.
[23] On 17 March 2025, the day before the hearing of the Council’s application for interim orders, the Council held another extraordinary meeting on the issue of fluoridation.10
[24] At the 17 March 2025 meeting, the Council resolved to revoke its 28 November 2024 resolution not to fluoridate, so that its staff could commence the testing required to meet the Direction by 28 March 2025. That testing needed to begin at the latest on 19 March 2025 and staff were directed to delay adding fluoride to the water supply until 19 March 2025. The Council also resolved to direct its staff that, if the Court granted interim relief following the hearing on 18 March, they were to cease fluoridation of the Council’s water supplies. The resolution went on to acknowledge that the Health Amendment Act 2021 had taken the decision about fluoridation away from local government and had given it solely to the Director-General. The Council requested the Mayor and Council Chief Executive to seek urgent clarification from the Director-General that she stood by the Direction requiring the Council to fluoridate, that she confirm the safety of adding fluoride at the level required and also to advise that it was testing “under protest and without prejudice to its legal challenge”.
Legal principles
[25] The interim orders are sought under s 15(3) of the Judicial Review Procedure Act 2016 (JRPA), which provides that the Court may make an interim order:
(a)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power; or
10 The meeting had originally been scheduled as a closed (public excluded) meeting to take place on 11 March 2025. Following opposition by a majority of Councillors a vote was taken to hold the meeting in public and it was rescheduled to 17 March 2025 to allow for three days’ notice to be given.
(b)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
[26] Such an order may be made by the Court on application of a party if, in the Court’s opinion, it is necessary to do so to preserve the position of the applicant.11 That position must be “as far as possible, the position prior to the decision complained of”.12 It has also been said more recently in another challenge to fluoridation that a liberal approach should be taken to that threshold question and:13
It is not limited to preserving the status quo. It can include putting the applicant in the position that it would have been but for the claimed illegality.
[27] In that case Cooke J went on to say that a liberal interpretation of the threshold question was appropriate to allow the Court to retain jurisdiction to grant interim orders in all appropriate cases. The strength of the position sought to be preserved was, however, highly relevant to the decision whether to grant such orders.14
[28] If the Court is satisfied that the order is reasonably necessary to preserve the position of the applicant, the Court has a wide discretion to consider all the circumstances of the case, including the strengths or weaknesses of the applicant’s claim for review, and all repercussions of granting interim relief, whether public or private.15
[29] An order under s 15(3) may be made subject to such terms and conditions as the Court thinks fit and may be expressed to continue in force until the application is finally determined, or until such other date, or the happenings of such other event, as the Court may specify.16
11 Judicial Review Procedure Act 2016 (JRPA), s 15(1).
12 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA) at [66].
13 New Health New Zealand Ltd v Wellington Water Limited [2022] NZHC 2389 at [24].
14 At [24].
15 Minister of Fisheries v Anton Trawling Company Ltd [2007] NZSC 101 at [3] citing Carlton and United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J.
16 JRPA, s 15(4).
Evidence
For the applicant
[30] Both parties have filed affidavits providing expert evidence. For the Council, Dr Bruce Lanphear, a Professor from the Faculty of Health Sciences at Simon Fraser University in Vancouver, British Colombia, has deposed that community water fluoridation has limited benefits for oral health as compared to topical fluoride applied to the surface of the teeth. He also deposes there is evidence to suggest fluoride causes a number of health problems, and that recent studies have shown an association between prenatal fluoride exposure and lower IQ, due to the fact fluoride is a neurotoxin, particularly at levels around 1.5mg/L.
[31] Dr Lanphear provides an overview and a commentary on scientific evidence about community water fluoridation including reference to research he was involved in (the MIREC study), which found associations between exposure to fluoridated water in infancy and diminished intelligence. He also notes that in 2024, the United States’ National Toxicology Program (NTP) published a systematic review of fluoride and neurotoxicity, which found epidemiological studies were consistent in detecting an association between elevated fluoride exposure and reduced IQ. Dr Lanphear further refers to a recent October 2024 update of a systematic review of fluoridation (the Cochrane review) which concluded that community water fluoridation was not significantly associated with reductions of dental caries.
[32] Dr Lanphear takes issue with the Ministry of Health’s recent assessment of the science on fluoride which was appended to the 2024 NZBORA assessment, describing it as “largely indistinguishable from an advocacy statement that one finds from partisan groups such as the American Dental Association…”.
[33] Dr Lanphear’s evidence is supported by that of Dr Philip Grandjean, Professor of Environmental Medicine at the University of Southern Denmark and the National Institute of Public Health, and Research Professor at the University of Rhode Island. He also deposes that research has indicated fluoride is a neurotoxin that negatively impacts children’s IQ. He considers that fluoride exposure at the level applied in New Zealand of 0.7 to 1.0mg/L corresponds to an average loss of two IQ points in
progeny. Dr Grandjean is of the view that the elevated levels of fluoride exposure in the New Zealand population who receive community fluoridated drinking water is a serious public health concern that should be discontinued.
For the respondents
[34] In support of the respondents’ opposition to interim orders, the Deputy Director-General of Health for the Public Health Agency, Mr Andrew Old, filed an affidavit setting out the background to this proceeding. He deposes that the Council was chosen alongside 13 other local authorities to be considered for a direction to fluoridate based on factors such as readiness to fluoridate, cost/value for money, high population reach, geographic coverage, and equity/high need.
[35] Mr Old provided a report to the Director-General on July 2022 that contained analysis of each of the selected local authorities and their water supplies, including consideration of scientific evidence on water fluoridation. This evidence included the Office of the Prime Minister’s Chief Scientific Advisor (OPMCSA)’s 2021 Update (2021 Update).
[36] The 2021 Update confirmed pre-existing evidence that there were no adverse effects of any significance arising from fluoridation at the levels used in New Zealand. It also found that adding fluoride to water continues to have a positive impact by reducing the incidence of dental caries which is important to reduce socio-economic health inequities, particularly for Māori and Pacific children. Mr Old recorded that 58 per cent of children in Northland District Health Board area (increasing to 75 per cent of Māori children) had experienced tooth decay at age five, with an average of 3.41 decayed, missing or filled primary teeth. He deposes that the evidence indicated provision of community water fluoridation at a level of 0.7 to 1mg/L was safe and it significantly improves oral health outcomes and reduces the prevalence and severity of dental decay.
[37] Mr Old also notes that, following the High Court’s direction that the Director- General undertake a NZBORA assessment of the directions to fluoridate, in December 2024 she published the NZBORA analysis and the underlying scientific analysis conducted in support of it. The Ministry’s underlying scientific analysis contained an
updated evidence review undertaken by the Ministry’s Office of the Chief Science Advisor (OCSA) in collaboration with the Public Health Authority (PHA) in 2024 (the 2024 Evidence Review). That review concluded that community water fluoridation was a safe and effective public health intervention to prevent dental caries. A further publication in November 2024 which considered more recent research (November 2024 Additional Information Publication) found the more recent research did not change the overall conclusions of the 2024 Evidence Review. The research considered in the November 2024 Additional Information Publication included the NTP’s updated systematic review, the 2024 Cochrane review, and the recent Fluoride case in the United States of America.
[38] The evidence of Dr George Town, the Chief Science Advisor at the Ministry of Health, responds to the evidence of Dr Lanphear and Dr Grandjean. Dr Town deposes that their evidence provides no new information from what was addressed in the 2024 Evidence Review and November 2024 Additional Information Publication. He deposes that the relevant studies cited by the applicant’s expert witnesses were carefully considered and addressed in the documentation available to, and utilised by, the Director-General in re-affirming the 2022 directions to Councils to undertake community water fluoridation.
[39] Dr Town says that the statements of the applicant’s witnesses—that there is no reasonable doubt that developmental neurotoxicity is a serious human health risk associated with elevated fluoride exposure—are incorrect. He asserts the methodology of the 2024 Evidence Review and November 2024 Additional Information Publication is robust and based on the overall body of literature rather than selected references expressing a specific view.
Submissions
Applicant’s submissions
[40] Mr Browne, for the Council, submits that the Council is seeking to maintain its position pending the resolution of its claims, as before the Direction, the Council was providing safe drinking water to its community and was compliant with its
obligations to “improve, promote and protect public health within its district”.17 He says that if the Council is forced to fluoridate it will be in breach of s 23 of the Health Act as well as its obligation to provide safe drinking water under s 21 of the Water Services Act 2021. The position it seeks to preserve is its position before the Direction was made. Mr Browne submits that the Director-General’s decision in late 2024 to affirm the earlier direction is also relevant. The Council’s case is that the Director- General was provided with inaccurate information and made a decision that was flawed.
[41] Mr Browne also submits there is a strong argument that safety is an implied mandatory consideration for the Director-General in considering whether to direct fluoridation and at what level. He argues that the Director-General has no power to order fluoridation at a level that would place a water provider in breach of its statutory duty to provide drinking water that is free from a significant risk of causing injury. He notes the Council has adduced detailed evidence from experts about the risks of fluoridation to the developing human brain, and that recently a Federal Court in the United States has found that fluoridation at a level of 0.7mg/L (which is the lower level the Council has been directed to apply) presents an unreasonable risk of injury to health.
[42] Mr Browne contends that interim relief is consistent with parliamentary intention, as in introducing pt 5A of the Health Act 1956, Parliament intended public health officials to direct fluoridation on the basis of medical evidence. The statutory framework contemplates the possibility of judicial review of the power to fluoridate and thus of seeking and obtaining interim relief. But the Council cannot challenge its obligations to provide safe drinking water under the Water Services Act, thus it is “between a rock and a hard place”. He argues the Council’s challenge is squarely on the basis of medical evidence, which is the central policy consideration of the legislation.
[43] It is also submitted that the Council’s application for judicial review and the declaration proceeding are new challenges, not a repeat of previous litigation
17 Health Act, s 23.
challenging fluoridation. This is because the interaction between the obligations to fluoridate, to provide safe drinking water under the Water Services Act, and to avoid nuisance or conditions affecting health under the Health Act have not been judicially examined before. Mr Browne observes that the neurological risks of fluoridation have not been judicially examined, either in New Health New Zealand Inc v South Taranaki DC,18 New Health New Zealand Inc v Wellington Water Ltd,19 or in Fluoridate Action Network (NZ) Inc v Hastings DC.20 While he acknowledges that the issue was raised in pleadings for New Health New Zealand Inc v Director-General,21 Mr Browne says the issue of whether the Director-General turned his mind to the Bill of Rights was carved off and decided as a separate issue, and so the Court has yet to consider the neurotoxin issue.
[44] Mr Browne further submits that granting the interim orders is in the public interest, as avoiding permanent damage to the brains of vulnerable infants is clearly a public health good. He says the respondents conflate their interest in defending the policy of water fluoridation with the actual public interest in protecting and enhancing human health, and there is a lack of evidence to support the proposition that water fluoridation reduces inequalities. The Council’s evidence is that the benefit from water fluoridation is relatively minor as compared to topical application of fluoride on teeth.
[45] Mr Browne rejects the respondents’ argument that the Council has “unclean hands”, when the Council has broken no laws. He says the fact that the Council passed a resolution not to fluoridate its water is irrelevant, particularly given that resolution has now been revoked. The Council will comply with the Direction if it does not obtain interim relief.
[46] Mr Browne also rejects the respondents’ argument that the Council is guilty of delay, and says that while the original direction to fluoridate was made in July 2022, that direction is still under challenge in other litigation, and it was not until 3 December 2024 that the Director-General confirmed the Direction. He notes the Council sought an extension from the Director-General shortly after her confirmation
18 New Health New Zealand Inc v South Taranaki District Council [2018] 1 NZLR 948 (SC).
19 Wellington Water, above n 13.
20 Fluoride Action Network (NZ) Inc v Hastings District Council [2024] 2 NZLR 779 (HC).
21 New Health New Zealand Inc v Director-General of Health, above n 6.
of the Direction, and that it was not until 30 January 2025 that the Director-General responded rejecting any extension. He says the Council has since moved swiftly to file the judicial review and declaration proceedings and to apply for interim orders.
[47] Lastly, Mr Browne submits that preserving public safety is a significant feature in deciding whether to grant interim relief. New Zealand is a party to the Convention of the Rights of the Child, art 24 of which provides that states parties recognise the right of the child to “enjoyment of the highest attainable standard of health…”. A grant of interim relief upholds the safety of developing brains, and the Court is required to “ensure that no executive or judicial decision will put a citizen child’s safety at risk”.22
Respondents’ submissions
[48] Mr Varuhas, for the respondents, submits that this proceeding raises serious issues about the rule of law, the Council’s disregard of Parliament’s laws in the Health Act and evidence-based decision making, and detriment to the public interest. He submits that the application for interim orders should be declined, as:
(a)the Council has no position to preserve, when the status quo is that it is under a mandatory statutory duty to comply with the Direction to fluoridate. The interim relief the Council seeks would not affect the Council’s duty to comply with the Direction. The Council’s latest resolution is a strategic decision by the Council to clear the path to its preferred course of non-compliance with a mandatory statutory duty;
(b)granting the interim relief sought would be contrary to Parliament’s intention in enacting pt 5A of the Health Act, as it would effectively immunise the Council from the consequences of its non-compliance and disable the enforcement options Parliament deliberately provided to address situations such as this;
22 With reference to Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC) at [11].
(c)the Council’s conduct disentitles it from relief as it passed its resolution not to fluoridate without waiting to consider the Director-General’s NZBORA analysis or the Ministry’s scientific review, did not take any opportunities to relay its views to the Director-General and Ministry, and has shown a troubling disregard for the rule of law;
(d)the Council’s significant delay in waiting to bring the proceedings weighs heavily against relief, given the Direction has been in place since 27 July 2022 but the Council waited until compliance was imminent before seeking interim relief;
(e)granting the interim orders would seriously prejudice the public interest by encouraging other councils to refuse to comply and/or bring proceedings to avoid compliance, and would negatively impact the oral health of those in Whangārei and potentially other local communities; and
(f)the Council’s application has low prospects of success as the courts are reluctant to grant interim orders where the underlying judicial review claim disputes public health evidence, the Council’s challenge to scientific evidence lacks merit, and the pleaded grounds of review also lack merit.
Analysis
Does the Council have a position to preserve?
[49] I have some difficulty with the Council’s submission that it is seeking to maintain its position pending the resolution of its claims, rather than improve its position. The Council’s current position is that the Council has been directed under s 116E of the Health Act to fluoridate part of its water supply by 28 March 2025, and it is required to comply with that direction under s 116I, or face the prospect of a criminal prosecution for contravention of the Direction and a fine of up to $200,000 and a further $10,000 fine for every day that it continues to refuse to fluoridate its
water supply.23 Other consequences arise in relation to the Council’s funding agreement with the Ministry of Health, including that the Council may be required to repay the funding it has already received, and would not receive the remainder of the agreed funding which was contingent on fluoridation commencing.
[50] The difficulty for the Council is that it now appears to accept that the decision whether or not to fluoridate is not for it to make and that it must comply with the Direction (which was made in 2022), but it also says that it is the Director-General’s affirmation of the Direction in late 2024 that is the decision of concern, being based on what it says is flawed information and a failure to consider new research in a proper manner. Therefore, putting the Council back in the position it was in before the claimed illegality of the Director-General’s 2024 confirmation of the Direction only puts the Council back in the position it was already in—where it was required to comply with the Direction made in 2022.
[51] It follows I agree with the respondents’ submission that what the Council is in reality seeking to preserve, or more accurately restore, is its position prior to the Direction being made in 2022, when it was under no obligation to fluoridate its water supply. However, applying the liberal approach to this threshold question that Cooke J found appropriate, I would be prepared to accept that the threshold is possibly met when the Council is seeking to be put back in the position it would have been in but for the claimed illegality of the original direction in 2022. But I can find no compelling reasons to justify interim relief to preserve that position pending determination of the Council’s challenges to the Direction (and or its confirmation), for the following reasons.
Interim relief would permit unlawful conduct
[52] First—and fatal to the Council’s application—is the effect that a grant of interim relief would have. The Council, which now appears to accept that it must comply with the direction to fluoridate by 28 March 2025 (and which is the correct legal position) is in reality seeking to pursue its preferred course of not complying with the Direction while avoiding any legal consequences of that unlawful course of
23 Health Act, s 116J.
action. In other words, the Council is asking the Court to order the Ministry of Health not to take any enforcement action against the Council under the Health Act when it (as it will if interim relief is granted) begins to act unlawfully from 28 March 2025, nor to seek to enforce its funding arrangements with the Council.
[53] I agree with the respondents it is axiomatic that the granting of relief should not have the effect of allowing something that is unlawful.24
[54] The Council’s latest resolution also includes a direction to its staff to cease fluoridation if interim relief is granted. That amounts to a direction to staff to act in contravention of the law. As noted by the United Kingdom Supreme Court in R v Secretary of State for the Home Department, a policy of a public authority that authorises or approves unlawful conduct is itself an unlawful action that undermines the rule of law in a direct and unjustified way.25 Granting the interim orders would clearly result in the Council pursuing such a policy.
[55] Finally, I record here the Council’s submission that a failure to grant relief would expose it to a risk of a prosecution brought by the Water Services Regulator under the Water Services Act 2021, which prescribes offences involving recklessness or negligence in the supply of unsafe drinking water.26 As Mr Browne responsibly conceded, however, that risk is at best theoretical in the circumstances at play here. Less theoretical, perhaps, is the prospect of a private prosecution brought by a person or organisation strongly opposed to fluoridation. But in any case, the orders sought only apply to the respondents, not to anyone else who might wish to take any action against the Council if it begins to fluoridate its water supplies. Such theoretical possibilities cannot justify orders that would enable the Council to flout a law that Parliament has enacted. Accordingly, I do not strictly need to go on to consider all of the points raised, but I do so in brief, given the comprehensive submissions and material that I have been provided with.
24 See Lincoln v Police HC, Palmerston North, CIV-2009-454-473, 5 August 2009 at [16].
25 R v Secretary of State for the Home Department [2021] UKSC 37.
26 Water Services Act 2021, ss 171 and 172.
Interim relief would be contrary to Parliament’s intention
[56] Given the Director-General is exercising a public power in directing a local authority to fluoridate its water supply, it is clear that such a direction can be judicially reviewed and subject to interim relief.
[57] However, a review of pt 5A of the Act supports the view that granting interim relief in this case would be contrary to parliamentary intention. The stern penalties Parliament has implemented to respond to failures to comply with a direction to fluoridate a water supply, and other enforcement responses (which include the Director-General’s ability to perform a defaulting authority’s legal duty) were put in place to deter councils from refusing to fluoridate in the face of vocal opposition from parts of the community. This purpose is clear from the discussions regarding the amendment bill recorded in Hansard, and from the Regulatory Impact Statement and the Departmental Disclosure Statement, which also demonstrate that Parliament sought to transfer the decision to fluoridate to an entity with the requisite scientific and medical expertise, and resourcing.
[58] There is some force to the respondents’ submission that what has transpired in Whangārei is precisely the mischief that Parliament sought to avoid. The Council’s November 2024 resolution not to fluoridate appears to have passed without the Council undertaking any thorough scientific or expert analysis (which it is not equipped to do) and before the Ministry’s updated review was published in December 2024. Its subsequent revocation of that resolution is made “under protest”.
[59] I agree with the respondents that granting the interim orders sought would prevent the Director-General from employing the enforcement powers Parliament has granted to it for exactly this purpose. And such orders would appear to have the potential to cut across the important principle of prosecutorial discretion, under which Courts are reluctant to intervene in prosecution decisions.
Disentitling conduct
[60] I also consider that the Council’s conduct has, to a degree, undermined its application for relief.
[61] It is not irrelevant that the Council passed a resolution refusing to fluoridate its water supply. Even though the resolution was revoked the day before the hearing, and the fluoridation deadline is not until 28 March 2025, for some four months the Council’s resolution demonstrated a concerning public disregard for the law and the legal obligations of a local authority. And the very recent change of position is, as I have said, only “under protest”.
[62] The Council has also significantly delayed in bringing its proceedings. Although the Director-General only confirmed the Direction on 3 December 2024, the High Court had made clear in February 2024 that the Direction remained in place, and confirmed in May 2024 the extended dates for fluoridation. Instead of bringing proceedings then, which would not have required the application for interim relief, the Council has waited until the eleventh hour to file these proceedings, in what appears to be an optimistic reliance on the prospect of receiving another extension from the Director-General.
[63] The Council’s position, as I understand it, is that it did not itself challenge the Direction because the Direction was (and still is) being challenged by another party, so that the Council did not need to expend its own funds. While there may be some merit in such an approach from a fiscal perspective, the result is the position the Council has put itself in, where it is seeking a last-minute reprieve from the legal consequences of not beginning fluoridation when it is required to. Given the Council took the risk not to pursue any legal action until close to the deadline to fluoridate, it is difficult to see how it is in the interests of justice to grant orders protecting it from the consequences of such a decision. As the Court of Appeal has held, “a last moment” application “strongly counts against the grant of any interim orders”.27
[64] The delay in bringing the proceedings has also meant that significant capital investment in the infrastructure to enable fluoridation has already been made, with the Council receiving funds for this work despite its opposition to fluoridation. I note that, in the New Health relief decision, in declining to quash the directions to fluoridate,
27 Christian Congregation of Jehovah's Witnesses (Australasia) Ltd v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions [2024] NZCA 340 at [8].
Radich J had regard to the funding provided for capital works after the directions were made.28 In this case, it also counts against a grant of interim orders when the Council has accepted funding to enable it to undertake the very work it now seeks to prevent.
The public interest
[65] I also do not consider that it is in the public interest to grant the interim orders. I accept that protecting and enhancing public health is in the public interest. However, as I will outline below in regard to the prospects of success, I do not accept that the evidence is sufficiently clear about the purported risks to public health to support interim orders stopping fluoridation before the determination of the substantive proceedings.
[66] In contrast, there is convincing evidence that granting the interim orders sought would result in other councils29 similarly seeking to avoid fluoridation, in the face of an already significant investment in fluoridation infrastructure. On the Ministry’s evidence there is also a potential for an adverse effect on the oral health of people living in the affected districts, with people from lower socio-economic backgrounds being particularly affected.
[67] I accept that preserving public safety has been a significant feature in deciding whether to grant relief in a number of cases, and that New Zealand has obligations concerning the health and safety of children under the Convention on the Rights of the Child and the Care of Children Act. However, I am not satisfied that the evidence tendered in support of the application establishes such immediate risks that warrant interim orders, particularly where significant parts of New Zealand (more than half) have had fluoridated water supplies for a number of decades. I acknowledge the expertise of the Council’s experts. But the fact remains that the Ministry has considered their views.
28 New Health New Zealand Inc v Director-General of Health, above n 7, at [29]–[30].
29 Rotorua Lakes District Council has sought suspension of its direction and will vote on its compliance on 26 March 2025. Tauranga City Council has also only voted by a narrow majority to comply. The Ministry has reported it has received significant volumes of correspondence on fluoridation from councils.
Prospects of success
[68] As indicated above, I have doubts about the prospects of success in the substantive proceedings. As noted in the respondents’ submissions, judicial review is a supervisory jurisdiction concerned with the process followed in public decision making rather than the substantive merits of the decision under review, particularly where it involves experts.30 Although during the hearing the applicant sought to redefine its challenge to the Direction as being that the Director-General had regard to incorrect information on the risk of injury from fluoridation, I still consider the Council’s primary claim is that the Direction does not accord with medical and scientific evidence.
[69] In my view, the findings in Ngā Kaitiaki Tuku Iho Medical Action Society Inc v Ministry of Health are directly applicable here.31 In that case, the High Court considered an application for interim relief to suspend the COVID-19 vaccine roll-out due to concerns about the risks of the vaccine and its efficacy. Ellis J helpfully commented that:32
A very significant margin of appreciation must be afforded to those who are charged with making public health decisions—including decisions about managing public health risk—of a very significant kind. In the present case, the evidence is that the Minister has been advised by a plethora of experts in the relevant fields. And as just noted, the approval of the vaccine is in step with international developments.
[70] Similar circumstances are present in this case. Although the Council’s experts disagree with the Ministry’s findings that fluoridation is both safe and effective, it remains the case that the Ministry has undertaken significant reviews of the science regarding fluoridation (including essentially all the literature referred to by the applicant’s expert witnesses) and the advice to the Director-General has been that fluoridation of community water supplies in the range of 0.7–1mg/L is safe and promotes oral health. Community water fluoridation is also endorsed by the World
30 Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZCA 259, [2009] 3 NZLR 713 at [182].
31 Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107.
32 At [73].
Health Organisation and is implemented in other liberal democracies, including Australia, Canada, the United Kingdom and the United States.33
[71] In addition, as Cooke J observed in Wellington Water, the issue of water fluoridation in New Zealand has been widely litigated, with applications to cease or prevent fluoridation failing at the High Court, Court of Appeal and Supreme Court.34
[72] I note the recent decision of the Federal District Court of Northern California relied on by the applicants,35 but it is a first instance decision (now under appeal) that is neither directly applicable nor particularly determinative. Although it concluded that water fluoridation (at the level applied in New Zealand) posed an unreasonable risk of injury to the health of the public in the United States, it did not conclude that fluoridated water was injurious to public health. The Court did not make any order to cease fluoridation but only required the Environmental Protection Agency to consider possible regulatory responses. That decision was also considered by the Ministry in its most recent review. Finally, I record that I reject the submission for the Council that the Ministry somehow has a bias towards retention of the status quo (being its position that fluoridation is safe and effective) when there is no evidence whatsoever to support it.
[73] I do not delve further into the science of fluoridation, which is impossible in the context of an urgent application for interim orders, although counsel addressed it at some length at the hearing. All that I can say with any confidence is that it appears clear, and likely uncontroversial, that there is an association between fluoride at a high level of exposure and adverse consequences to people. Below high-level exposure (significantly higher than the level applied in New Zealand), any such association appears to be much less clear, there are, as is to be expected, differences in studies and opinions that result from those studies, and as I have already said, the Ministry of Health has comprehensively and recently reviewed the studies.
33 New Health New Zealand Inc v South Taranaki District Council, above n 18, at [121].
34 Wellington Water, above n 13, at [28].
35 Food & Water Watch Inc v US Environmental Protection Agency (US District Court, Northern District of California, 17-cv-02162-EMC, 24 September 2024).
[74] Consequently, I consider the prospects of success in the underlying judicial review application to be slight, although this remains to be determined at the substantive hearing.
[75] I make no comment as to the prospects of success in the associated declaration proceedings which was not the subject of any substantive discussion at the hearing. I note only that:
(a)The declaration proceedings appear to amount to the seeking of a “merits” review by the Court of the scientific evidence about fluoride and courts have previously expressed a hesitance to engage in such a review, given they are not well equipped to determine disputed issues of scientific or technical opinion.36
(b)The declarations sought, that fluoridation at the levels in New Zealand is likely to cause a serious risk to health and is unsafe, are also not the type of declaration typically made by the Court. Such declarations are generally limited to rights37 or the construction or validity of instruments such as agreements or legislation.38
(c)Section 12 of the JRPA may pose an obstacle to the declaration proceedings, as it would appear to empower the Court to direct such proceedings (which involve the exercise of a statutory power—here the Direction) be treated as an application for judicial review (under which the courts do not undertake merits reviews).
Conclusion
[76] I conclude that this is not a case in which an application for interim orders is appropriate. The Council is seeking to immunise itself against the legal consequences of not complying with the law and it is not appropriate for the Court to grant orders facilitating unlawful conduct. The orders sought are contrary to Parliament’s intention
36 New Health New Zealand Inc v South Taranaki District Council, above n 18, at [114].
37 Gouriet v Union of Post Office Workers [1978] AC 435 (HL).
38 Declaratory Judgments Act 1908, s 3.
that the Director-General is the decision maker and councils must comply with the Director-General’s decisions about fluoridation. The Council has engaged in some disentitling conduct in this case. The substantive judicial review application has low prospects of success and the Declaration proceedings may also face difficulties.
Result and costs
[77]The application for interim orders is declined.
[78] Costs should follow the event. The respondents seek costs on a 2B basis which would appear appropriate. Unless the parties consider otherwise, I will leave the issue of costs to be determined following the resolution of the substantive judicial review application.
Grau J
Solicitors:
Henderson Reeves, Whangarei for Applicant Crown Law, Wellington for Respondents
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