Judicial Review of Local Authorities

What is judicial review?

The basis of judicial review “rests in the free-standing principle that every action of a public body must be justified by law, and at common law the High Court is the arbiter of all claimed justifications”.[1]  An “underlying premise of judicial review … is the maintenance of the rule of law and it is the role of his Court to see that it is maintained”.[2]

Judicial review should be a simple process to test whether “public powers have been exercised after a fair process, and in a manner, which is both lawful and reasonable”.[3]  The focus is on process, not on outcome.[4]  Recourse for dissatisfaction as to substantive outcome is to be achieved through the political and democratic process.[5]

It is for this reason that judicial review is a claim process that almost always proceeds on the basis of the written record before the relevant decision-maker. There is rarely cross-examination, expert evidence is ordinarily of limited weight, and the court do not permit the back-filling of evidence with affidavits (particularly in a manner that deviates from the written record).

Judicial review and local authorities

Local authorities are a common target for judicial review.  And the reviews against them are unique.  In Wellington City Council v Woolworths New Zealand Limited (No 2) the Court of Appeal said that “judicial review of the exercise of local authority power, in essence, is a question of statutory interpretation”.[6]  This is perhaps the other side of the same coin that a local authority “is not a sovereign body and can only do such things as are expressly or impliedly authorised by Parliament”.[7]

Courts are slow to interfere with policy decisions of local authority.  In the sphere of rating decisions, the Court of Appeal has said they were “essentially a matter for decision by elected representatives following the statutory process and exercising the choices available to them”.[8]  In similar vein, the Court of Appeal noted the “constitutional and democratic constraints on judicial involvement” in what were “wide public policy issues”.[9]  In another case the Court of Appeal remarked that “[p]roper respect must be given to the role and responsibilities of the democratically elected council”.[10]  In the exercise of discretionary powers, local authorities have “considerable capacity to choose between alternative courses of action” and “to respond to the wishes of their constituency”.[11]

Unless a 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 be some material capable of supporting the decision”.[12] 

These comments are particularly apposite in this case, where it has previously been held that the number of freedom camping sites and their locations was a policy consideration for local authorities.[13]  In another case it was accepted that “the decision of the Council as to the regulation of responsible camping contains a high policy content”.[14]

Permissive approach to material

The Courts do not take an unduly niggardly approach to assessing the material before a local authority that led to a decision being made.  Hammond J has said that the Court will not interfere by “assessing the council’s homework”.[15]  Similarly, the Court of Appeal has observed that a “Council cannot be required to meticulously record reasons for its approach to procedural detail as if it were a court”.[16]

Relief in judicial review

Relief in judicial review proceedings is discretionary.  However, where a claim has been made out, relief will only be declined where there are “extremely strong reasons”.[17]

The kind of relief that can be obtained are primarily orders quashing decisions or parts of decisions, or orders mandating a party do something in particular.

[1]                R (Beeson) v Dorset County Council [2002] EWCA Civ 1812, [2003] UKHRR 353 at [17], cited in Independent Fisheries Limited v Minister for Canterbury Earthquake Recovery [2014] NZHC 2810 at [1].

[2]                Akaroa Marine Protection Society Inc v Minister of Conservation [2012] NZHC 933; [2012] NZAR 65 at [70].

[3]                Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13].  In New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) the Court of Appeal confirmed that the process of judicial review concerns process and whether a decision was reached “in accordance with the law, fairly and reasonably” (at 552).

[4]                Independent Fisheries Limited v Minister for Canterbury Earthquake Recovery [2014] NZHC 2810 at [1]; Aorangi School Board of Trustees v Minister of Education [2010] NZAR 132 (HC) at [8].

[5]                Van Duyn v Helensville Borough Council (1984) 5 NZAR 55 (HC) at 64: “If it made the wrong decision, then it will be accountable politically”.  New Zealand Public Service Association Inc v Hamilton City Council [1997] 1 NZLR 30 (HC) at 36: “If the citizens at large are not satisfied with the council’s performance, in the time honoured phrase, they have their option ‘to throw the rascals out’ in due course”.

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

[7]                Hazell v Hammersmith and Fulham London Borough Council [1991] 1 All ER 545 at 548 cited in Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA) at 43.

[8]                Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552.

[9]                At 546.  On wide public policy, see also Neil Construction Limited v North Shore City Council [2008] NZRMA 275 (HC) at [277].

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

[11]               At 413–414.

[12]               Pring v Whanganui District Council [1999] NZRMA 519 (CA) at 523.

[13]               New Zealand Motor Caravan Association Inc v Thames-Coromandel District Council [2014] NZHC 2016, [2014] NZAR 1217 at [108].

[14]               Marlborough at [165].

[15]               New Zealand Public Services Association Inc v National Distribution Union Inc CP52/96, HC Kirikiriroa | Hamilton, 16 September 1996 at 19.

[16]               Wellington City Council v Minotaur Custodians Limited at [48].

[17]               Air Nelson Ltd v Minister of Transport [2008] NZAR 139 (CA), citing Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL); Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 at 122 (HC).