FORD v BOARD OF TRUSTEES FOR SMITH PRIMARY SCHOOL [2021] NZCA 363

FORD v BOARD OF TRUSTEES FOR SMITH PRIMARY SCHOOL [2021] NZCA 363 [15 July 2021]NOTE: THE IDENTITY OF THE APPELLANT, THE CHILD AND THESCHOOL IS PERMANENTLY SUPPRESSED.CONFIDENTIALITY ORDERS APPLY TO THE EVIDENCE FILED. THEFILE IS NOT TO BE SEARCHED WITHOUT LEAVE OF A JUDGE OF THISCOURT.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA399/2021[2021] NZCA 363BETWEEN FORDAppellantAND BOARD OF TRUSTEES FOR SMITHPRIMARY SCHOOLRespondentHearing: 8 July 2021Court: Brown, Clifford and Goddard JJCounsel: A S Butler and S W H Fletcher for AppellantP A Robertson and C T Child for RespondentS P Connolly and A M Piaggi for Secretary for Education asIntervenerJudgment: 15 July 2021 at 3.00 pmReasons: 2 August 2021JUDGMENT OF THE COURTA The appellant's application to adduce further evidence is declined.B The appeal is allowed.C The following declarations are made:(i) The purported revocation of the appellant's place at SmithPrimary School was unlawful.(ii) The offer letter remains valid and the appellant is entitled to enrol atSmith Primary School in accordance with ss 33 and 74(2)(a) of theEducation and Training Act 2020 on Monday 26 July 2021 or on suchlater date as may be agreed by the appellant's parents and SmithPrimary School.D The respondent must pay the appellant costs for a standard appeal ona band A basis with usual disbursements. We certify for two counsel.E Direction under r 5(2) of the Senior Courts (Access to Court Documents)Rules 2017 that documents or files of any kind related to the appeal maynot be accessed, except by the parties, without permission of this Court.____________________________________________________________________Table of ContentsPara NoIntroduction [1]The statutory scheme [7]Relevant facts [17]The enrolment scheme [17]Bella's application [22]The decision to withdraw the offer of a place [27]The High Court judgment [30]Issue on appeal [35]The application to adduce further evidence [37]Submissions [38]Appellant's submissions [38]Respondent's submissions [40]Submissions of the Secretary [44]Enrolment schemes: an overview [50]The home zone [51]In-zone students [53]Out-of-zone students [56]The present case [61]Analysis [64]Text [65]Purpose [75]Conclusion [86]Relief [89]Result [91]REASONS OF THE COURT(Given by Brown J)Introduction[1] The appellant (Bella), who turned five in July this year, wishes to attend SmithPrimary School (the School) where her elder sister is already a student. The Schoolhas an enrolment scheme specifying a home zone. Because she lives out of theSchool's home zone Bella has no automatic entitlement to enrol at the School but mayapply for a place there.[2] On her parents' application Bella was offered a place at the School for Term 3in 2021 which her parents accepted on or about 28 August 2020.1 However on19 March 2021 the School principal advised Bella's parents that, due to unexpectednumbers of home zone enrolments, the School could not proceed with out-of-zoneenrolments and Bella's offer was rescinded.[3] Bella's parents applied for judicial review of the decision that Bella was notentitled to enrol at the School. They sought declarations that the decision wasunlawful, that the offer of a place at the School remained valid and that Bella wasentitled to enrol at the School.[4] While accepting that the offer of a place at the School was the exercise ofa statutory power and the lawfulness of the withdrawal of an offer was reviewable, theHigh Court ruled that it would be inconsistent with the scheme of the Education andTraining Act 2020 (the 2020 Act) to adopt an interpretation which prevented a schoolfrom revisiting an offer prior to a child being actually enrolled. The application forreview was declined.2[5] Bella now appeals. The issue on the appeal is one of statutory interpretation:can a school with an enrolment scheme lawfully withdraw an unqualified offer to anout-of-zone student of a place at the school? As in the High Court, the Secretary ofEducation (the Secretary) was granted leave to intervene.1 Approximately 11 months before Bella's fifth birthday.2 Ford v A School Board of Trustees [2021] NZHC 1608 [High Court judgment].[6] Given the impending enrolment day the parties indicated that it would beadvantageous to receive a result judgment. Consequently on 15 July 2021 we issueda result judgment with reasons to follow.3 These are the reasons.The statutory scheme[7] New Zealand children of school age are entitled to free education. The startingpoint is s 33(1) of the 2020 Act:4Except as provided in this Part, every domestic student is entitled to freeenrolment and free education at any State school during the period beginningon the student's fifth birthday and ending on 1 January after the student's 19thbirthday.However the right to attend any State school is qualified in relation to schools whichhave an enrolment scheme.[8] Enrolment schemes were provided for in the Education Act 1989 (the 1989Act) as originally enacted but at that point did not apply to primary schools.5 Sincethen there have been multiple iterations of enrolment schemes. The most recentchange came with the Education Amendment Act 2000 which substituted a new set ofrelevant provisions (ss 11A to 11PB). It was these provisions which were in force atthe date of introduction of the enrolment scheme the subject of this appeal.[9] The 1989 Act was repealed and replaced by the current Act which in large partcame into force on 1 August 2020. However the provisions relating to enrolmentschemes, most of which are contained in sch 20, did not come into force until 1 January2021. Hence when on 28 August 2020 Bella's parents accepted the School's offer, the1989 Act applied. By the date of the purported withdrawal of the offer in March 2021the relevant parts of the 2020 Act had come into force. In this judgment we willgenerally refer to the 2020 Act and footnote the equivalent provision in the 1989 Act,except where in the context it is necessary to refer specifically to the 1989 Act.3 Ford v Board of Trustees for Smith Primary School [2021] NZCA 321.4 Section 33 came into force on 1 August 2020, the day after the date on which the Act received theRoyal assent. Its predecessor, s 3 of the Education Act 1989 (1989 Act), was in essentially similarterms.5 See s 12 of the 1989 Act as originally enacted.[10] Save in two respects, s 11D of the 1989 Act was materially the same as s 74 ofthe current Act which relevantly provides:674 How enrolment schemes work(1) A person who lives in the home zone of a State school that has anenrolment scheme is entitled to enrol at that school.(2) An applicant for enrolment at a school with an enrolment scheme wholives outside the school's home zone is entitled to enrol at the schoolonly—(a) if the applicant is offered a place at the school in accordancewith the procedure set out in the enrolment scheme;[11] If overcrowding7 occurs or is likely to occur at a State school, the Secretarymust establish an enrolment scheme for the school8 which defines by geographicboundaries a home zone for the school9 and complies with sch 20 of the Act.10Section 71 states the purposes and principles of an enrolment scheme:1171 Purpose and principles(1) The purpose of the enrolment scheme of a State school is—(a) to avoid overcrowding, or the likelihood of overcrowding, atthe school; and(b) to ensure that the selection of applicants for enrolment at theschool is carried out in a fair and transparent manner; and(c) to enable the Secretary to make the best use of existingnetworks of State schools.(2) In achieving its purpose, the enrolment scheme of every State schoolmust, as far as possible, ensure that—(a) the scheme does not exclude local students; and(b) no more students are excluded from the school than isnecessary to avoid overcrowding at the school.6 The former section was headed "Effect of home zone". Also s 11D(1) commenced with the words,"Subject to the provisions of this Act".7 Overcrowding means the attendance at the school of more students than its site or facilities canreasonably be expected to take: Education and Training Act 2020, s 10(1) (2020 Act).8 Section 72(1).9 Section 73(a); and sch 20, cl 1(1). This must be an area for which the school is a reasonablyconvenient school for a student living in that area to attend: sch 20, cl 1(2)(a).10 Section 72(2).11 Section 11A was the equivalent provision in the 1989 Act.[12] The requirements of proposed enrolment schemes are spelled out in cl 5 ofsch 20:5 Requirements relating to proposed enrolment schemesAn enrolment scheme for a State school—(a) must comply with the purpose and principles of enrolmentschemes set out in section 71; and(b) must define the school's home zone in the enrolment schemein a way that ensures that students can attend a reasonablyconvenient school; and(c) may have boundaries for its school's home zone that overlapor are contiguous with the boundaries of the home zone of anyadjacent State school that has an enrolment scheme; and(d) must promote the best use of the network of State schools inthe area.The equivalent provision in the 1989 Act12 required the Secretary to additionally besatisfied that:(e) the procedures for determining which applicants who live outside thehome zone will be offered places at the school comply with section11F and any instructions issued under section 11G; and(f) the Board has carried out adequate consultation under section 11H.[13] Six priority groups are specified determining the order of priority in whichapplicants who live out-of-zone are to be offered places at a school.13 Second prioritymust be given to any applicant who is a sibling of a current student at the school.If there are more applicants in a priority group than available places, selection withinthe priority groups must be by ballot.14[14] Clause 2(5) of sch 20 states:15An application for enrolment at a school with an enrolment scheme must beprocessed by the school in accordance with the enrolment scheme, and maynot be declined on technical grounds or on any other ground that would beinconsistent with the purpose and principles set out in section 71.12 Section 11I(1).13 2020 Act, sch 20, cl 2(1).14 Schedule 20, cl 2(2). This is except for the first priority group for applicants accepted into a specialprogramme run by the school.15 Section 11F(5) was the equivalent provision in the 1989 Act.[15] Clause 3 addresses instructions and guidelines on the operation of enrolmentschemes.16 With reference to instructions cl 3(1) states:3 Instructions and guidelines on operation of enrolment schemes(1) The Secretary may issue instructions to State schools that haveenrolment schemes about the following matters:(a) the procedures for holding ballots:(b) the dates on which ballots are to be held:(c) the establishment and maintenance of waiting lists:(d) the information to be given to applicants who live outside theschool's home zone:(e) any other matter that the Secretary considers necessary forensuring the fair, transparent, and efficient operation ofenrolment schemes.Schools must comply with instructions issued under cl 3(1).17[16] With respect to guidelines, cl 3(3) states:(3) The Secretary may issue guidelines to State schools about either orboth of the following matters:(a) the basis on which the Secretary's powers in relation toenrolment schemes may be exercised (including, in particular,the power in clause 14(2)(a) relating to the determination ofwhether an applicant lives within a home zone or outside it);(b) the manner in which schools must conduct reviews underclause 13 (which relates to the review of a student'senrolment).Relevant factsThe enrolment scheme[17] From the commencement of the 2002 school year, an enrolment scheme hasoperated at Smith Primary School. The introduction of the scheme was prompted byexcessive pressure on classroom spaces in 2001, primarily through the new entrantintake.16 Section 11G was the equivalent provision in the 1989 Act.17 Clause 3(2)(a).[18] The enrolment scheme description, which was among a bundle of documentsprovided by counsel for the Secretary subsequent to the hearing in response to ourrequest, specified the scope of the School's home zone, recorded that the School doesnot run a special programme18 and provided as follows for out-of-zone enrolments:Out of Zone EnrolmentsEach year the Board of Trustees will determine the number of places whichare likely to be available in the following year for the enrolment of studentswho live outside the home zone. The Board will publish this information bynotice in a daily or community newspaper circulating in the area served by theschool. The notice will indicate how applications are to be made and willspecify a date by which all applications must be received.Applications for enrolments will be processed in the following order ofpriority:[The priority categories were then explained].If there are more applicants in the second, third, fourth or fifth priority groupsthan there are places available, Selection within the priority group will be byballot conducted in accordance with instructions by the Secretary. UnderSection 11G(1) [of] the Education Act 1989. Parents will be informed of thedate of any ballot by notice in a daily or community newspaper circulating inthe area served by the school.[19] Counsel for the Secretary also provided copies of two documents which wewill discuss further below. First, instructions relating to the operation of enrolmentschemes issued by the Secretary under s 11G(1) of the 1989 Act on 5 May 2011 andamended on 14 July 2017 (the Instructions) which were the instructions in force during2020 when Bella's application was processed.19 They stated that schools with anenrolment scheme must comply with those instructions.[20] Secondly, the bundle included a copy of the Guidelines for the developmentand operation of enrolment schemes for State Schools dated September 2017 issuedby the Secretary under s 11G(3) of the 1989 Act (the Guidelines). These Guidelinesexplained that to assist schools the Ministry had developed a pro forma enrolment18 Hence the first of the six statutory priority categories did not apply.19 We have not seen the instructions which applied at the time the School's enrolment scheme wasimplemented. However we record that a letter from the Ministry of Education to the School Boardconveying approval of the School's enrolment scheme stated:When you are preparing for a ballot to select out of zone students, please pay particularattention to the requirements contained in the Secretary's Instructions relating to theoperation of enrolment schemes.scheme at appendix 1. Appendix 2 contained draft notices, administrative documentsand letters to parents for use by boards of trustees.[21] We note that corresponding with the 2020 Act there are new versions of boththe Instructions and Guidelines dated December 2020 and effective from 1 January2021. However for the purpose of this judgment we have referred to those providedby the Secretary that were in force when the offer was made.Bella's application[22] The School principal deposed that a newspaper advertisement is usuallya parent's first interaction with the enrolment scheme and attached an advertisementwhich the principal said Bella's parents were likely to have seen. However thatadvertisement was dated September 2019 and related to enrolments for 2020. Therewas no advertisement in evidence relating to the 2021 year and in light of theprincipal's further evidence it may be doubted whether there was an advertisement in2020. Bella's mother deposed that neither she nor her husband had seen one.[23] The principal deposed that by August 2020 the principal determined that theSchool could not hold a ballot for out-of-zone applicants in 2021 because there wereinsufficient spaces available. Rather, the principal determined that all of the availableplaces in the School should be assigned to in-zone students on the pre-enrolment listas well as siblings of current students. The principal explained that 2020 was the firstyear that the School had not held a ballot since its establishment.[24] On or about 18 August 2020 the principal wrote to several parents advisingthem that the School would not be holding a ballot for out-of-zone students becauseall of the places available would be filled by siblings of current students. However theprincipal's evidence did not explain the process of communication with the parents ofthose out-of-zone students who were to be offered places. Bella's mother deposed thatthe School approached them personally to confirm that Bella was applying for a placeas a sibling of a current student.[25] What is not in dispute is that the principal sent to Bella's parents a letter dated25 August 2020 which stated:Thank you for your application for enrolment of [Bella] at [Smith Primary]School.This year we will not be holding a ballot for out-of-zone students as all of theplaces available will be filled by siblings of current students, therefore I amable to offer [Bella] a place at our school for next year.As we have adopted a Cohort Policy, [Bella] will be eligible to start at thebeginning of Term 3 on Monday 26 July 2021, however we will discuss thiswith you closer to the time.Please confirm your acceptance of the place in writing, or alternativelyindicate that you will not be taking up the offer. A tear-off slip is provided foryour convenience. Your reply must reach the school no later than14 November 2020.I look forward to hearing from you.[26] On or about 28 August 2020 Bella's parents accepted the offer. Howeveralmost seven months later on 19 March 2021 the School principal informed Bella'sparents that the School could not proceed with the five out-of-zone enrolments.The decision to withdraw the offer of a place[27] The circumstances giving rise to that decision to withdraw the offer to Bellawere explained by Simon France J as follows:20[16] The optimum roll for Smith Primary School is 208. However,overcrowding is a more complex analysis depending upon the numbers, forexample, at each level. The Ministry sets ratios for the school for each year,which presently are:Year 1 – one teacher in one teaching space with 15 students;Years 2 and 3 – one teacher in each teaching space with 23 students;andYears 4–8 – one teacher in each teaching space with 29 students.[17] Smith Primary School has three teaching spaces for Years 1–3.It needs four, as it has 85 students. The School is this year using a lined garageout of which to teach the 15 Year 1 students. It is a limited space, and is neithera designed classroom nor a designated teaching space. The curriculum islimited by this. Some aspects of the curriculum must be taught elsewhere20 High Court judgment, above n 2.meaning the students have to move to other spaces and at times just fit in withthe other 70 children in their space.[18] 2020 was not a typical year. One of the neighbouring schools wasexperiencing overcrowding so decided not to advertise at all for out-of-zoneapplications. It is seeking to review its home area zone to address the issue;this will have potential knock-on effects to neighbouring schools. Anotherneighbouring school has no numbers issues so did not have a ballot processfor the opposite reasons, namely that all applicants would be accepted.[19] Smith Primary School estimated likely home zone numbers andthought it could accommodate all the out-of-zone applications in prioritygroup [two], being those with siblings at school. Accordingly no ballot forgroup [two] was done, but all five applicants were offered places. This is thefirst time a ballot has not been held. It was expected the school would notreach capacity until Term 4, 2021.[20] The principal, however, deposes:The influx of students we received over the December 2020 toMarch 2021 period was simply unprecedented. We have neverseen this kind of growth in the School nor in the wider'home-zone' population.[21] The school received six unexpected home zone applications betweenAugust and December 2020. It was thought at the time that this could beaccommodated but then at the start of 2021, a further seven were received.This led the school to conclude it was not viable to maintain the out-of-zoneYear 1 offers.[22] The principal identifies several reasons for withdrawing the offer ofenrolment:(a) the increased numbers;(b) the pressure currently on staff, students, and resources.The school is described as stretched and struggling toaccommodate existing students;(c) the workload on the new entrant teacher, and on externalagencies that assist;(d) the current poor building resource for existing Year 1students; and(e) planned classroom remodelling in the balance of 2021.[28] With reference to the offer letter, the School principal maintained that theadvice of a place was conditional on a further review of the roll. Drawing specificattention to the words "eligible" and "however" in the third paragraph, it was said thatBella's start date was subject to further review and negotiation with her parents.[29] When the decision was made that it was no longer viable to enrol Bella and theother out-of-zone children with siblings at the School, the principal conferred witha Ministry of Education adviser who confirmed that the course of action proposed bythe School was the correct one.The High Court judgment[30] Bella, through her parents as litigation guardians, applied for review of thedecision to withdraw the offer of a place at the School, contending that the offer lettermet the requirements of s 74(2)(a) of the 2020 Act and the School had no lawful basisfor revoking the offer. The School responded that:(a) the offer was made on the implied condition that there were sufficientplaces available for out-of-zone children once all in-zone studentsenrolled;(b) nothing in the offer letter guaranteed Bella an absolute right ofenrolment under s 33;(c) the School had reason to believe the enrolling of Bella was likely tocause overcrowding and therefore the Act required that Bella not beenrolled;(d) the School was informed by the Secretary that it would be unlawful toenrol Bella due to overcrowding and the School withdrew the offer ofenrolment on the advice and guidance of the Secretary.[31] However, as Simon France J recorded, by the end of the hearing it was acceptedthat the School's letter was not expressed in conditional terms.21 Thus the issue waswhether the Act should be interpreted as conferring a power to revisit an offer ofa place made without qualification.21 High Court judgment, above n 2, at [33].[32] Emphasising the presence of the same phrase "entitled to enrol" in both s 74(1)and (2), Bella argued that the scheme of the Act is one of absolutely expressedentitlements. It followed that, when a student accepts the offer of an out-of-zone place,the change in status from an absence of eligibility to enrol to one of an entitlement toenrol is equivalent to an absolute home zone enrolment entitlement.22[33] While recognising that that interpretation was clearly tenable, the Judgepreferred the interpretation advanced by the School and the Secretary that there isa difference between the status of enrolment, which accords many rights, and thepre-enrolment processes, which should not be viewed as creating binding contractsthat force a school to overload its classes with consequent impacts on existing studentsand staff.23 The Judge considered that Bella's interpretation was inconsistent with thepurposes of the Act, including to avoid overcrowding, and gave insufficient weight tothe fact that the home zone entitlement does not arise before a child turns five.24[34] The Judge concluded:[47] Concerning a school operating an enrolment scheme, rights to enrolwill not completely vest until the child is five. It is at that date a home zonestudent must live in the area, and at that date an out-of-zone student must havean offered place. It is necessary and sensible to operate a pre-enrolmentprocess for out-of-zone students that offers places to children in advance oftheir fifth birthday. While the normal expectation, and no doubt experience,is that such offers are honoured, it would be inconsistent with the scheme ofthe Act, and the purpose of enrolment schemes, to interpret the Act aspreventing a school from ever revisiting an offer prior to the child beingactually enrolled.[48] The circumstances in which an offer [can] be lawfully withdrawn arelikely to be very limited. There is no doubt that the decision was properlytaken in the present case.Issue on appeal[35] Bella challenged the judgment on several grounds, identifying thefollowing errors:(a) in departing from "normal interpretation principles" when interpretingsection 74 of the Education and Training Act 2020 ("the Act"), and22 At [28].23 At [31].24 At [35]–[36].holding that the meaning of the phrase "entitled to enrol" insection 74(2) was different to the meaning of the phrase "entitled toenrol" in section 74(1) (Judgment at [34]);(b) in failing to address the effect of section 33 of the Act, which gives allchildren a right to attend "any" school, and in particular in failing toaddress the effect of section 33 on the purpose of the Act;(c) in finding that there was a power available for boards of trustees torevoke or withdraw places offered to out-of-zone students, despitesection 74(2) of the Act and the absence of any statutory powerpermitting revocation or withdrawal (Judgment at [47]–[48]);(d) in failing to follow this Court's judgment in Goulding v ChiefExecutive, Ministry of Fisheries [2004] 3 NZLR 173 (CA), where thisCourt held that final decisions which affect citizens' rights are"irrevocable"; and(e) in failing to address the fact that express discretionary powers toaffect enrolment rights for students are generally vested in theSecretary of Education (not boards of trustees), and the circumstancesin which they can be exercised are tightly circumscribed (compareJudgment at [46]–[48]).[36] However, relief considerations aside, in our view the sole issue on the appealis whether the statute empowers a school to withdraw an unqualified offer of a placeat the school made to an out-of-zone applicant under s 74(2)(a).25The application to adduce further evidence[37] An application was made to adduce what was described as an updatingaffidavit of Bella's mother to which was annexed a paginated bundle of documents.The apparent purpose of the affidavit was to identify "the other affected families" andto make clear that neither of Bella's parents had acted in breach of the suppressionorders made in the High Court. However that evidence is not cogent in respect of theissues of law raised by the appeal. Nor is there any suggestion in the submissions ofthe respondent that the conduct of Bella's parents bears on issues of relief.Consequently the application to adduce further evidence is declined.25 Or under s 11D(2)(a) of the 1989 Act if the offer was made prior to 1 January 2021.SubmissionsAppellant's submissions[38] Mr Butler for Bella reprised his argument that s 74(1) and (2)(a) each confersan entitlement to enrol, albeit on different groups of students, as the phrase "entitledto enrol" links back to the right recognised in s 33. Reading ss 33 and 74 together hesubmitted there is clearly an "entitlement" to attend "any" State school but, where anenrolment scheme is in place, that entitlement is subject to the requirements outlinedin s 74. Enrolment schemes, which are a response to actual or potential overcrowding,create home zones and through them the concepts of in-zone and out-of-zone students.However his argument was that s 74 does not permit a school to invoke overcrowdingin order to deny the rights of enrolment it confers. To the contrary, s 74 explains thatboth groups of students are entitled to enrol despite the existence of an enrolmentscheme, that is, despite there having been recognition of likely or actual overcrowding.[39] Mr Butler then submitted that there is no express power in the 2020 Act torevoke places given to out-of-zone students. The Act provides for discretionarypowers to affect individual students' rights in a range of situations. Thosediscretionary powers permit the overriding of the default position vis-à-vis zoningpursuant to s 74(2)(b) but only the Secretary is permitted to exercise them.Furthermore such powers are almost always subject to statutory safeguards such asconsultation and specific regulation making powers to oversee how they should beused in practice. While accepting that in highly circumscribed situations the courtscan correct the text of legislation, in his view the prerequisites to the use of that powerare not present in this case.26Respondent's submissions[40] For the respondent Mr Robertson accepted that the offer of a place in theSchool's letter to Bella's parents was unconditional and that the decision to offer hera place was a final decision. However he submitted that the purposes of the 2020 Actmake it clear that a school must avoid overcrowding, ensure the health and safety of26 See Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 (HL) at 592: "The court mustbe able to correct obvious drafting errors. In suitable cases, in discharging its interpretativefunction the court will add words, or omit words or substitute words."all students and enrol children in a manner that is commensurate with availableresources. There were four strands to his argument.[41] First he drew attention to the fact that cl 2 of sch 20 draws a distinction betweenchildren who are offered a place at a school during a pre-enrolment process and thosewho are entitled to enrol, pointing out that no child has any entitlement to enrol untilthey turn five years of age. He submitted there is a difference between a status ofenrolment, which brings with it rights to receive education at a particular school, anda pre-enrolment process which assesses eligibility for enrolment but does not lock inany rights until enrolment occurs. Hence it was said that Bella could not have anyright to enrol until she turned five.[42] Secondly it was submitted that cl 2, which generally sets out the power of theSchool to accept an enrolment application, must carry with it the implied power torevoke the acceptance of an application, citing s 15 of the Interpretation Act 1999.That proposition was said to be reinforced by the terms of cl 2(5). The entitlement ofthe Secretary to review a School's decision to decline an application for enrolmentunder cl 14(2)(b) was said to provide a "backstop" to the exercise of powers grantedto schools even though the review power may only be exercised in exceptionalcircumstances.27[43] Thirdly reliance was placed upon the power to correct errors provided in s 13of the Interpretation Act. Finally, a strong submission was advanced that thecircumstances of this case weighed in favour of the Court declining relief, for to dootherwise would disproportionately impact enrolled students who already have vestedrights to an education at the School which must be given priority over the rights ofothers. It was submitted that it was necessary for the School to balance the interestsof current students, in-zone applicants and out-of-zone applicants. Of those, theout-of-zone applicants had the lowest priority and therefore it was entirely appropriateand reasonable for the School to withdraw the offers made to Bella and others in herpriority category.27 Clause 14(3).Submissions of the Secretary[44] For the Secretary Mr Connolly likewise advanced the submission that a boardof trustees is entitled to withdraw an offer of a place to an out-of-zone student ifcircumstances change (for example because the board considers it has becomenecessary to do so to avoid overcrowding), in which event the student is not entitledto enrol on the otherwise applicable enrolment day. However, in contrast to therespondent's argument, Mr Connolly contended that outcome followed simply fromthe correct interpretation of s 74(2)(a) in the context of the statutory scheme.His interpretation relied on two propositions:(a) First, s 74(2)(a) applies only if there is an "extant" offer to the applicantat the relevant enrolment date.(b) Second, an offer made prior to enrolment is by its very nature"conditional" in the sense that it is contingent on the School in facthaving sufficient places at the time when the applicant intends to enrol.[45] Two aspects of the statutory text were relied upon in support of thatinterpretation. First Mr Connolly reiterated the point made by Mr Robertson thatenrolment occurs only on actual presentation by attendance at the school which cannotoccur prior to a child's fifth birthday. He submitted that it is only at that time, onenrolment day, that the question arises whether the relevant statutory criteria aresatisfied. Mr Connolly emphasised that the interpretation favoured by the Secretaryresulted in the phrase "entitled to enrol" having a consistent meaning in boths 74(1) and (2)(a).[46] Secondly reliance was placed on the fact that s 74(2)(a) uses the phrase"is offered a place". The adoption of the present tense was said to support aninterpretation that required that there be an extant offer on the relevant enrolment day.Parliament could have used, but chose not to, the expression "has been offered aplace".[47] It was submitted for the Secretary that the process for enrolment is dynamicand there is no perfect way for a board of trustees to balance giving reasonableassurances to parents of out-of-zone applicants while also ensuring as far as possiblethat a school is not overcrowded. The fact that pre-enrolment offers to out-of-zonechildren are by their nature conditional was said to be a necessary implication in lightof the relevant statutory scheme. Mr Connolly maintained that the ability of a boardto withdraw an offer does not require the reading in of a statutory power not given tothe board by Parliament. Rather, the ability to withdraw an offer was said to be simplya tool available to the board of a State school in the management of its enrolmentscheme in much the same way as the maintenance of a waiting list.[48] The negative implications of the case for Bella were highlighted:43. The interpretation of s 74(2)(a) advanced by the appellant, wherebyoffers made prior to enrolment dates cannot be withdrawn, but insteadguarantee an entitlement to enrol once made, would compromise theability of boards to discharge their obligation to avoid (or at leastreduce) overcrowding by using the primary tool at their disposal forthat purpose: excluding out-of-zone applicants from enrolment. Thiswould likely result in greater incidences of overcrowding and/orboards adopting overly conservative enrolment practices (for exampleby tending to underestimate likely available places for out-of-zonechildren).[49] The preferred approach of the Secretary was summarised as follows:44. By contrast, the interpretation advanced by the Secretary supports theability of boards to discharge their obligations and perform thebalancing act required of them in doing so. In particular, it recognisesthat enrolment schemes are an iterative and ongoing process operatingon the basis of two important distinctions. The first distinction isbetween in-zone and out-of-zone children. The second distinction isbetween the time period prior to enrolment and the time at whichenrolment occurs.Enrolment schemes: an overview[50] We commence with some observations about the manner in which thelegislation envisages an enrolment scheme will operate.The home zone[51] The interests of "local students" (a term which is not defined) are sought to besafeguarded by the requirement in s 71(2)(a) that an enrolment scheme must as far aspossible ensure that in achieving its purpose of avoiding overcrowding it does notexclude local students. The means of securing the objective of balancing the interestsof local students with the avoidance of overcrowding is by the drawing of thegeographical boundaries of the home zone defined in the enrolment scheme.Any student within that home zone has (what the Instructions describe as) "an absoluteright of enrolment" at the school.28 As the Guidelines explain:29It is important to understand, however, that the need to avoid overcrowdingdoes not take precedence over the rights of enrolment that are guaranteed toin-zone students. This means that the board must determine a roll figurearound which it can manage overcrowding while at the same time providingfor the enrolment of all students who apply for enrolment from within thehome zone. When the board draws up a home zone, it must do so with thecapacity of the school in mind.[52] The Guidelines describe an enrolment scheme as a "tool" that enables a boardto prevent overcrowding at its school.30 However once the home zone is defined bythe enrolment scheme, the use of the enrolment scheme as such a tool is spent so faras limiting the numbers of in-zone students is concerned. In order to exclude localstudents from the school in the future it would be necessary to amend the enrolmentscheme under sch 20, cl 9(1) of the 2020 Act by altering the geographical boundariesof the home zone.In-zone students[53] The legislation envisages both pre-enrolment and enrolment events.31 As theGuidelines explain:32Pre-enrolment processes include the process of applying for entry to theschool and, potentially, being accepted for enrolment. "Enrolment", on theother hand, occurs when attendance at the school commences and the studentis first marked as present on the school roll.[54] Section s 74 envisages applications by out-of-zone students. The legislationalso contemplates that in-zone students may participate in a pre-enrolment process by28 Commentary to Instructions 1 and 34. Similarly the Guidelines refer to "an absolute entitlement":at 3.29 At 4.30 At 4–5.31 See for example sch 20, cls 6(3)(b) and cl 11 of the 2020 Act.32 At 14. The verb "enrol" is defined in s 10(1) of the 2020 Act to include "admit", with "enrolment"and "enrolled" having corresponding meanings.submitting either an application for enrolment33 or a "pre-enrolment form".34However the Guidelines make clear that a board cannot insist on pre-enrolments byin-zone students:35A board cannot require applications for enrolment from in-zone students to bemade by a certain date, because the legislation gives an absolute right ofenrolment to any student who lives within the home zone.Almost certainly, however, boards will wish to receive such applications bythe same date set for receipt of out-of-zone applications, because boards haveto quantify the number of places likely to be available for out-of-zone studentsbefore proceeding to a ballot. Therefore the board may include indicativedates for pre-enrolment of home zone students in the same notice as thatgiving information to out-of-zone applicants.The Instructions further state that applications by in-zone students made subsequentto the pre-enrolment period must be accepted36 unlike out-of-zone students whocannot be enrolled unless a new ballot is arranged.37[55] The pro forma enrolment scheme at appendix 1 of the Guidelines includes anon-compulsory paragraph providing for applications for enrolment by in-zonestudents. Although the School's enrolment scheme did not incorporate that provision,it appears from the 2019 advertisement exhibited to the principal's affidavit that theSchool did adopt the practice of advising parents of in-zone students that they alsoshould apply for enrolment so as to assist the School to plan appropriately for thefollowing year.38Out-of-zone students[56] Section 74(2)(a) envisages that an enrolment scheme will set out a procedurefor offering places at the school to out-of-zone applicants. The pro forma enrolmentscheme in appendix 1 of the Guidelines is reflected in the School's enrolment scheme3933 Clause 14(2)(a).34 Clause 12(1).35 At 14–15.36 Instruction 29.37 Instruction 30.38 The draft newspaper notice in appendix 2 of the Guidelines included such advice to parents ofin-zone students.39 At [18] above, save for the paragraphs in the pro forma scheme addressing special programmepriority.and states that the published notice will indicate how applications are to be made andby when.[57] The process is elaborated upon in Instructions 15 and 20:INSTRUCTIONSBALLOTSCOMMENTARY15. Each of the second, third, fourth,fifth and sixth priority groupingsmust be considered in turn. If thenumber of applicants within aparticular priority grouping is lessthan the total number ofremaining available places, allapplicants within the groupingmust be offered enrolment.Otherwise, a ballot will berequired, and all applicants withinthe grouping must be included inthe ballot.A couple of examples may behelpful. Let us suppose that asecondary school determines thatit has 40 spaces available at year9 for out of zone students in thefollowing year. Let us alsosuppose that of the 70 out of zoneapplications that it receives, 6 arefrom siblings of present students.All of these must be enrolled. Thenext to be considered are siblingsof former students, of which thereare 9. All of these must beenrolled. Similarly the 2 childrenof board employees must also beenrolled. This leaves 53 otherstudents, who must be ballotedbecause only 23 places remain.20. Names drawn in the ballot mustbe recorded in the order in whichthey are drawn, up to the limit ofthe number of places available(either in total or at a particularlevel, as the case may be).Beyond that point, names must berecorded on a waiting list in theorder in which they are drawn inthe ballot. [58] The commentary to Instruction 20 states that if there are no places availablefor any of the applicants within a particular priority group, a ballot of those applicantswill still be needed in order to establish a waiting list, because vacant places may openup later. It will be recalled that the establishment and maintenance of waiting lists isa matter on which the Secretary may issue instructions.40 The role of the waiting listis evident in Instruction 24:PROCEDURES SUBSEQUENT TOBALLOTSCOMMENTARY24. If parents of successful applicantsdecline to accept the placesoffered, or fail to respond withinthe 14 day period, the board mustoffer the vacant places tounsuccessful applicants in theorder in which their names arerecorded on the waiting list. Thisprocess should continue until allavailable places (as specified bythe board at the date of the ballot)have been filled or no namesremain on the waiting list.[59] Consistent with the content of those Instructions, appendix 2 of the Guidelinescontains the following draft letters:(a) To parents of an out-of-zone applicant unsuccessful in a ballot:A ballot has recently been held for places available for out of zonestudents and I regret to have to inform you that < name > was notsuccessful. The names of unsuccessful applicants were listed in theorder in which they were drawn in the ballot and were then placed ona waiting list. < Name > is number < give number > on the waitinglist.I have asked parents of successful applicants to inform me within14 days whether or not they wish to accept the place that has beenoffered. Any vacant places that result from this process will be offeredto unsuccessful applicants in the order in which their names appear onthe waiting list.(b) To parents of an out-of-zone applicant successful in a ballot:A ballot has recently been held for places available for out-of-zonestudents and I am pleased to be able to inform you that < name > wassuccessful. I am therefore able to offer him/her a place at our schoolfor next year (or "in the next enrolment intake").40 2020 Act, sch 20, cl 3(1)(c). See at [15] above.You will appreciate that a number of applicants were not successful inthe ballot. Please confirm your acceptance of the place in writing, oralternatively indicate that you will not be taking up the offer. Atear-off slip is provided for your convenience. Your reply must reachthe school no later than < a date that is 14 days from the date on thisletter >. If confirmation is not received by this date, the place will beoffered to the person currently at the head of the waiting list ofapplicants who were unsuccessful in the ballot.(c) To parents of an out-of-zone applicant when no ballot was necessary:The number of out-of-zone applications that the board received wasfewer than the number of places that are expected to be available forout-of-zone students. I am therefore pleased to be able to offer< name > a place at our school for next year (or "in the next enrolmentintake").Please confirm your acceptance of the place in writing, oralternatively indicate that you will not be taking up the offer.A tear-off slip is provided for your convenience. Please reply by < adate that is 14 days from the date on this letter > to assist us withforward planning.The tear-off slip in the second and third letters provided two options: acceptance orrejection of the offer of a place at the School.[60] We draw attention to the fact that in the second and third draft letters the offerof a place at the School is unqualified: in particular it is not expressed to be contingenton the actual number of in-zone students who might enrol.The present case[61] As suggested above41 it does not appear that the published notice procedurewas followed by the School in 2020. There would have been no reason for the Schoolto do so given that a decision had been made not to hold a ballot. Logically it mustfollow, absent a ballot of applicants within a priority category, that no waiting list wasestablished in August 2020.[62] Instead the principal sent two forms of letter. The first was to all theout-of-zone applicants, other than the five who were siblings of current students at theSchool, stating that it would be unnecessary to hold a ballot because all the places41 At [22]–[23].available were filled by the siblings. It inquired whether the parents would like theirchild to go in the ballot for 2022. There was no reference to a waiting list.[63] The second letter to the parents of the five siblings was in the terms of the letterto Bella's parents recited above.42 Like the second and third draft letters above, theoffer of a place at the School was unqualified and required acceptance or rejection.The suggestion that the letter could be read as conditional was abandoned in theHigh Court43 and it was accepted by Mr Robertson in this Court that it wasunconditional.44Analysis[64] Against that backdrop we turn to consider the parties' contentions on the issueof whether the Act should be interpreted as conferring a power to withdraw anunqualified offer of a place at a school made to an out-of-zone applicant unders 74(2)(a). The answer is to be determined by the text and purpose analysis directedby the Supreme Court in Commerce Commission v Fonterra Co-operative GroupLtd.45Text[65] The contention that the statutory language supported the interpretation that alloffers made under s 74(2)(a) can be withdrawn prior to the event of enrolment wasadvanced by the Secretary. As far as we can glean it was not run in the High Court.Primarily the argument hinged on the use of the present tense expression "is offereda place". That proposition was necessarily reliant on the submission that enrolmentonly occurs on presentation at the school by way of attendance with the consequencethat that is the relevant date for determining whether the statutory criteria are satisfied.[66] We do not question the point that the date of actual enrolment is the date offirst attendance at a school as a pupil. As earlier noted46 the various steps preparatory42 At [25].43 At [31] above.44 At [40] above.45 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [22].46 At [53] above.to enrolment which are detailed in the Instructions and Guidelines are part ofa pre-enrolment process. We note that both s 74(1) and (2) speak of the relevantperson being "entitled to enrol", which phrase was the focus of argument in the HighCourt. We will shortly revisit the significance of this point in the context of theargument advanced by both the respondent and the Secretary based on Bella's age.[67] The thrust of the Secretary's argument is that the present tense expression isintended to convey that s 74(2)(a) applies only if there is an "extant" offer to theout-of-zone applicant at the relevant enrolment date. Attention is drawn to the use ofthe past tense in s 74(2)(b), the point being made that in subs (2)(a) Parliament couldhave used, but did not use, the expression "has been offered a place".[68] We do not consider that the use of the present or past tense should be significantin the interpretation of s 74(2)(a). We read the subsection as meaning that, if the schooldecides there will be a place available for an out-of-zone student and offers that placewhich is then accepted by the student, an entitlement then arises to enrol in due courseon enrolment day.[69] It is a distortion of language to endeavour to read the wording of s 74(2)(a) asmeaning that the applicant must be in a continuing constant state of being offered aplace at the School, which endures until the enrolment date finally arrives. In our viewthe making of an offer of a place at a school is a single event, not an ongoing state ofaffairs. A limited time for acceptance of the offer is stipulated in the offer letter. AsInstruction 24 makes clear, in circumstances where the offer is the consequence of aballot, a failure to respond to the offer will result in its expiry.[70] It is convenient at this juncture to engage with the argument that turned on thepoint that Bella's application was made prior to her fifth birthday. The Secretary'sargument was expressed in this way:30. First, enrolment cannot occur prior to a child's fifth birthday andenrolment occurs only on presentation at the school for attendance. Itis at that time, ie the enrolment day, that whether the relevant statutorycriteria are satisfied should be tested. As the High Court noted theappellant's interpretation would give insufficient weight to the timingof enrolment and how subsection (1) applies for in-zone children. Bycontrast, the Secretary's interpretation means that the meaning of"entitled to enrol" is determined consistently in subsection (1) andsubsection (2)(a).(Footnote omitted.)[71] The High Court had considered that Bella's interpretation of the statute hadsome strength as a consequence of the use of the same expression "entitled to enrol"in describing the status of both an in-zone student and an out-of-zone student who hadreceived an offer of a place.47 In the passage to which the Secretary's submissionreferred in support of the argument as to the statutory meaning the Judge stated:[35] That said, the applicant's case gives insufficient weight to the fact thatthe home zone entitlement does not arise before a child turns five. It is at thatdate, or any date subsequent, that a child can present themselves. This mattersbecause here the applicant is contending that Bella had an irrevocable rightfrom a date not long after her fourth birthday. In that sense it seeks to accorda greater status to the out-of-zone child with an offer than the home zone childhas. The home zone child must remain resident yet Bella is said to beabsolutely entitled.[72] We do not share the Judge's view as to the relative status of the two children.The making of an offer to an out-of-zone applicant is a function of the pre-enrolmentprocess which the legislation recognises. Upon acceptance of the offer an entitlementto enrol then arises. The absolute entitlement of the in-zone student is also conferredby the statute but it has a residency requirement that applies as at the date of enrolment.As the Guidelines stated:Retention of entitlement to enrolmentThe determination of validity of an enrolment of an in-zone student, orenrolment of an out-of-zone student subsequent to a pre-enrolment selectionprocess, is determined at the date of enrolment, which is the first day ofattendance consequent on the pre-enrolment process. Once enrolled, thestudent is entitled to remain enrolled at the school until the end of the student'sschooling (for the year levels provided by the school), unless the enrolment isannulled under section 11O, terminated under another provision of the Act, orthe student enrols at another school.This means, for example, that if a student was living in-zone at the time ofenrolment, but the student and family later move to an out-of-zone address incircumstances where there is no ground for annulment under s 11O (i.e. it isnot a case of a temporary residence being used for the purpose of gainingenrolment) then the student is entitled to remain enrolled until completion oftheir schooling.47 High Court judgment, above n 2, at [34].[73] The fact that the pathway for the out-of-zone applicant necessarily involvesa pre-enrolment process which is determined in advance of the enrolment date doesnot lend support to the Secretary's argument that an offer made under s 74(2)(a) mustbe viewed as unilaterally revocable by the School at any time prior to enrolment day.[74] The argument that sought to invoke the restriction in s 62(a) on the enrolmentof children under the age of five years we see as a red herring.48 As Mr Butler put it,it would make no sense in the statutory scheme if offers in respect of new entrantscould be revoked at any time up until their fifth birthday whereas an offer to anout-of-zone Year 9 could not be revoked. Bella's chrysalis state does not prevent heracquiring an entitlement to enrol at the later date permitted by s 62(a). The fact thatshe was only four years old did not render her entitlement to enrol vulnerable torevocation pending her fifth birthday.Purpose[75] The starting point is the statement of purpose and principles in s 71.The objective of avoiding overcrowding or the likelihood of overcrowding49 will beaddressed in the first instance by the geographical scope of the home zone. That zonewill be drawn having regard to the directives in s 71(2) that the enrolment scheme doesnot exclude local students and that no more students are excluded from the school thanis necessary to avoid overcrowding. However once that home zone is defined, thenthe die is cast in terms of the availability of an absolute entitlement to enrol for localstudents. All the in-zone students will be entitled to enrol and hence no selectionprocess applies to them.[76] It follows that the purpose in s 71(1)(b), of ensuring that the selection ofapplicants for enrolment is carried out in a fair and transparent manner, is solelyconcerned with the manner in which out-of-zone students may be considered forenrolment. Fairness and transparency are also listed as considerations for theSecretary in issuing Instructions on the operation of enrolment schemes.50 That48 See the Secretary's submission at [70] above.49 2020 Act, s 71(1)(a).50 Schedule 20, clause 3(1)(e).objective is in effect reiterated in cl 2(5) of sch 20 in requiring that enrolmentapplications must be processed consistently with the s 71 purpose and principles.[77] We consider that fairness and transparency in the selection of out-of-zoneapplicants for enrolment is sought to be achieved in the legislation in a number ofways. First there is the six-fold order of priority specified in sch 20, cl 2(1) in whichapplicants are to be offered places at a school. Secondly there is the advertising of thepre-enrolment process and the related balloting procedure, the details of which arespecified with singular precision in the Instructions. Thirdly there is the relatedwaiting list process which again is addressed in some detail in the Instructions.[78] We have already touched upon the first and second matters but the concept ofthe waiting list was not explored to any significant degree in the parties' submissions.The waiting list will comprise the out-of-zone applicants who were unsuccessful inthe ballot procedure. As Instruction 24 notes, the board must offer vacant places tounsuccessful applicants in the order in which their names are recorded on the waitinglist. It is notable that a copy of the waiting list for places at a school must be availablefor inspection at the school at all reasonable times.51 The significance of the waitinglist and an out-of-zone applicant's place on the list is also demonstrated by the first ofthe quoted draft letters from appendix 252 which informs the parents of theunsuccessful applicant not only of the fact of their inclusion but also their location onthe list.[79] We consider that for out-of-zone applicants the legislation envisages a binaryscheme: an applicant is either offered a place at the school pursuant to s 74(2)(a) orthe applicant is recorded on a waiting list in the order in which that applicant wasdrawn in a ballot. The waiting list will reduce if and when vacancies arise and offersare made to previously unsuccessful applicants. The waiting list is a one-way streetin the sense that an applicant's position on the list, as notified in the relevant letter, canonly improve. It cannot be relegated.51 Schedule 20, clause 6(4)(c).52 At [59] above.[80] In our view the Secretary's contention that a board is entitled to withdraw anoffer once made would cut across the binary structure which the legislationcontemplates and would undermine the objectives of enrolment schemes. If an offerpreviously made was withdrawn, then that applicant would need to be entered on thewaiting list. Presumably such an applicant would be expected to have priority overthose already on the waiting list rather than being allocated the last spot. Consequentlyall those already on the waiting list would be relegated to accommodate offerees whohad been displaced consequent upon the withdrawal of their offers. We do not considerthat can have been the intention of the legislature and there is no support for sucha scenario in the statute, the Instructions or the Guidelines. We comment below on theimplications of this analysis for offers of places pursuant to s 74(2)(a) which areexpressly conditional.53[81] We reject the Secretary's submission that the ability to withdraw an offer issimply a tool available to the board of a State school in the management of itsenrolment scheme, in much the same way as the maintenance of a waiting list. Indeed,at least in theory, the concept of the offer of revocable places could avoid the need fora waiting list altogether because offers could be made to all out-of-zone applicants andsuch offers could be progressively withdrawn as the in-zone enrolment positionbecame clearer. Such a scheme would be opaque in the sense that there would be nowaiting list available for inspection at the school. Nor is it apparent by what processa decision would be made as to the sequence in which offers would be recalled. In ourview such a process would fail the objective of transparency and there is a grave riskthat it would also not be fair.[82] This predicament was avoided in the present case by the decision to withdrawthe offers made to all five of the sibling applicants. However it is instructive to reflecton what process the board would have followed, or the Ministry might have advised,had the number of in-zone applications necessitated the withdrawal of (say) only twoof the five offers. How would that have been managed given that the decision wasearlier made not to hold a ballot?53 At [84]–[85] below.[83] In that regard there was a telling observation in the following passage from theprincipal's affidavit;52. This matter has never been about the enrolment of just one morestudent to me. This is about the potential enrolment of 5 additional'out-of-zone' students, who are all in the same position (and six'in-zone' students, who are entitled to enrol, and are already strainingthe School's capacity). There is no way for me to pick and choosewhich of the five 'out-of-zone' applicants may be enrolled if a placebecomes available, so I determined that it was appropriate and fair forme to advise all 5 applicants of the same outcome; being that they areunable to enrol in Term 3 and should defer enrolment until Term 1,2022.Interestingly the affidavit further stated that all five applicants are now numbers oneto five on the School's priority list and that Bella is currently in number one spot.[84] As earlier noted54 the suggestion that the particular offer to Bella of a placewas conditional in its terms was not pursued on appeal and the conditional status ofs 74(2)(a) offers was advanced solely on a statutory footing. Consequently the conceptof an offer expressly formulated on the basis that it was conditional upon an availableplace on enrolment day was not a live issue before us and hence we did not have thebenefit of submissions on that issue from the parties or, importantly, the Secretary.[85] Matters which submissions on that issue would need to address would includethe relationship (if any) between such conditional arrangements and the waiting list,particularly given the manner in which the Instructions direct the list is to be formed,and the statutory requirement that the waiting list be available for inspection at schoolsat all reasonable times. Both those matters, but particularly the latter, have significantimplications for the second statutory purpose in s 71(1)(b) relating to the selection ofapplicants for enrolment in a fair and transparent manner. If the scenario of anexpressly conditional offer had been before us, we would have wished to explore howthe acceptance of such offers would impact on the waiting list, whether an offeree'sname would be removed from the waiting list, if so whether on revocation of an offerthe applicant's name would be reinstated to the waiting list and the manner and extentto which other applicants would be able to ascertain the existence of such conditionalplacements.54 At [40].Conclusion[86] The purpose cross-check reinforces our conclusion on the textual meaning ofs 74, namely that an unqualified offer of a place to an out-of-zone applicant may notbe withdrawn even though the eventual number of in-zone enrolments is consideredto cause overcrowding at a school. It follows that the School's purported decision towithdraw the offer to Bella of a place at the School which was accepted by her parentswas unlawful. The advice that appears to have been given by Ministry of Educationofficials to the contrary on a number of occasions was incorrect.[87] For completeness we briefly address the other arguments that were advancedin response to the appeal. We do not consider that there was any error in the exerciseof the power to make an offer under s 74(2)(a) which would render it susceptible tocorrection under s 13 of the Interpretation Act. Nor do we accept that s 15 of theInterpretation Act provides support for the proposition that the power of a school toaccept an enrolment application must carry with it the implied power to revoke suchacceptance. Nor does the implied power argument gain support from cl 2(5) uponwhich the respondent relied to justify withdrawal of Bella's offer. The offer of a placeat the School and the acceptance of that offer were made in accordance with theenrolment scheme. While the overcrowding implications of the subsequent surge inin-zone enrolments is unfortunate, it does not provide a basis under cl 2(5) forpurporting to withdraw an accepted offer.[88] Our conclusion is consistent with the common law principles governing thefinality of administrative decisions, as explained by this Court in Goulding v ChiefExecutive, Ministry of Fisheries.55 Unless the statutory context suggests otherwise, anadministrative decision will generally be treated as perfected, and incapable of beingrevisited, once it has been made and communicated to the person to whom the decisionrelates.56 That is the point at which, in the absence of an indication to the contrary inthe relevant legislation, "the conflicting interests of flexibility in administration andof citizens having reasonable certainty concerning matters affecting them, aremutually accommodated to the best overall advantage in the public interest".57 There55 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA).56 At [43].57 At [34].is nothing in the 2020 Act to support a different approach in relation to offers madeunder s 74(2)(a). Rather, this approach is consistent with the requirement in the Actthat enrolment schemes operate on a fair and transparent basis. Once an unconditionaloffer of a place has been communicated, the child and their family can be expected toact on the basis of that offer. It would not be fair or transparent, or consistent with therequirements of good administration, for such an offer to be withdrawn in the absenceof an express power to do so.Relief[89] The principal has explained in her affidavit the pressures which have come tobear on the School's staff, students and resources as a consequence of theunanticipated influx of in-zone students. While we do not traverse the detail of theseveral points made in the affidavit and emphasised by Mr Robertson, we are veryconscious of the difficult position in which the School finds itself. Notwithstandingthe brevity with which we address relief, this state of affairs has exercised usconsiderably.[90] However, on the basis of our conclusion that the purported withdrawal of theoffer of a place to Bella was clearly unlawful, a declaration to that effect is necessaryand appropriate. We have carefully considered whether in the exercise of thediscretion it might be appropriate to decline to grant the second declaration sought,given the difficult circumstances detailed by the principal and Mr Robertson.However the second declaration is the inevitable consequence of the first. We do notconsider that it would be a proper exercise of the discretion to decline to make it.Nevertheless we have varied the form of the declaration as sought to make it clear thatthe date of enrolment can be adjusted by agreement between Bella's parents and theSchool without compromising Bella's enrolment entitlement.Result[91] The appellant's application to adduce further evidence is declined.[92] The appeal is allowed.[93] The following declarations are made:(i) The purported revocation of the appellant's place at Smith Primary Schoolwas unlawful.(ii) The offer letter remains valid and the appellant is entitled to enrol at SmithPrimary School in accordance with ss 33 and 74(2)(a) of the Education andTraining Act 2020 on Monday 26 July 2021 or on such later date as may beagreed by the appellant's parents and Smith Primary School.[94] The appellant is entitled to costs. The respondent must pay the appellant costs fora standard appeal on a band A basis with usual disbursements. We certify for two counsel.Mr Robertson, perhaps understandably in the circumstances, suggested that the Secretaryshould be required to contribute to the costs payable.58 However we do not consider that it isappropriate to award costs against the intervenor in this matter.[95] We make a direction under r 5(2) of the Senior Courts (Access to Court Documents)Rules 2017 that documents or files of any kind related to the appeal may not be accessed,except by the parties, without permission of this Court.Solicitors:Woods Fletcher, Wellington for AppellantHeaney & Partners, Auckland for Respondent58 Senior Courts Act 2016, s 178(2)(c).