NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v MARLBOROUGH DISTRICT COUNCIL [2021] NZHC 3157

NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v MARLBOROUGH DISTRICTCOUNCIL [2021] NZHC 3157 [17 December 2021]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECIV-2021-406-015[2021] NZHC 3157BETWEEN NEW ZEALAND MOTOR CARAVANASSOCIATION INCORPORATEDApplicantAND MARLBOROUGH DISTRICT COUNCILRespondentHearing: 2-3 November 2021Appearances: P McNamara and O Rego for the ApplicantA C Besier and G A Rainey for the RespondentJudgment: 17 December 2021JUDGMENT OF GRICE J (No. 1)Table of contentsIntroduction [1]The Bylaw [3]NZMCA [8]Marlborough District [11]Issues [14]Legal framework [22]Consultation [32]The process [40]NZMCA's position [48]Analysis on consultation [58]Second cause of action: Freedom Camping Act 2011 [73]Material before the Council [82]The deliberations of the Subcommittee/Council [119]The MDC Decision [124]Submissions [132]Other cases [143]The approach [156]Third cause of action [169]Lack of legal sites [171]Findings [189]Relief [192]Costs [206]Introduction[1] The Marlborough District is situated in the north-eastern region of the SouthIsland. The local authority for the district is the Marlborough District Council (MDC).[2] The area is a popular tourist destination for freedom campers and others. Thiscase deals with bylaws promulgated by the MDC for freedom camping (also referredto as "responsible camping") across the district.The Bylaw[3] The MDC first made bylaws for freedom camping in 2012, following theenactment of the Freedom Camping Act 2011 (FCA). Those bylaws (as amended in2016) prohibited or permitted (with restrictions) freedom camping in areas or on siteslisted in the schedule to the bylaws. Otherwise, freedom camping was permittedthroughout the district on general conditions: one of which was that the camping couldonly be in vehicles with self-contained waste disposal (the default permission).1[4] In 2019, the MDC commenced a wide-ranging review of freedom camping.As a result of that, it initiated a process to review the bylaws. That review resulted inthe adoption of the 2020 bylaws. The bylaw review was handled by a specialcommittee of the Council (the Subcommittee), chaired by Councillor Oddie. It heardsubmissions and prepared a report which the full Council considered and adopted. Noissue is taken with that process. The 2012 bylaws were revoked in December 2020 atthe same time as the 2020 bylaws came into force.[5] The MDC bylaws used the phrase "responsible camping", which has the samedefinition as that of "freedom camping" under the FCA.2[6] The 2020 MDC Responsible Camping Control Bylaw took a differentapproach to that taken in the 2012 Bylaw. The new bylaw provided that unless a siteor area was named (subject to restrictions), responsible camping was by default,1 Marlborough District Council Freedom Camping Control Bylaw 2012, cl 6.2(b).2 Ms Tito, the manager of the review of the bylaw, said that "responsible camping" is the phrasenow used for "freedom camping" by central and local government. I use the terms "freedomcamping" and "responsible camping" interchangeably.prohibited in council managed or controlled areas (the default prohibition). Thechange in the default position had been adopted following the public hearings and inthe course of the Subcommittee's deliberations.[7] Only vehicles with self-contained waste disposal may use the specifiedpermitted areas or sites.3 No other form of freedom camping, such as camping in acar, caravan or vehicle (without self-contained waste disposal) or in a tent, is permittedat all. No issue has been taken with that restriction.NZMCA[8] The New Zealand Motor Caravan Association Incorporation (NZMCA)represents the interests of private motor home and caravan owners throughout NewZealand. It is the largest membership-based camping organisation. It has some108,000 financial members.[9] One of the objects of the NZMCA is the safe and courteous operation ofcertified self-contained freedom camping vehicles. It has a keen interest in theprovision of sites by local authorities for freedom camping. Ninety-two per cent of itsmembers with registered vehicles camp in a self-contained motor home or caravan thatcomplies with the standard for self-contained waste disposal in motor caravans.[10] NZMCA encourages all motor home and caravan owners to certify theirvehicles under the standard. It takes no issue with the MDC bylaw imposing thatrestriction on freedom camping.Marlborough District[11] The MDC has pointed out the challenges it has faced in regulating responsiblecamping in the district. This includes the geographical diversity of the land and soundsthat it covers as well as the climate factors – most recently, extensive flooding in theregion.3 The 2020 Bylaw used the phrase "Restricted areas" for areas and sites on which responsiblecamping is permitted subject to conditions. For ease of reference, I refer to the "Restricted areas"as "permitted" sites or areas.[12] The Marlborough district runs north from the boundary with Canterbury to theshores of Cook Strait and west to Tasman Bay. The Marlborough Sounds features anumber of inlets, bays and coves. Many are difficult to reach. Virtually all of them,if they are accessible by road, are serviced by narrow windy roads. Picton is at thehead of Queen Charlotte Sound and has a port that deals with many visitors arrivingand leaving on the interisland ferries between the North and South Island. Thisincludes many vehicles used for freedom camping. A distinct component within thedistrict is the alluvial Wairau Plains. Another is the tussock-covered back country onwhich large scale sheep farming was established. That part of the district is now oneof New Zealand's largest wine producing regions.[13] The MDC also faces administrative challenges. Before the Local GovernmentReforms, local government arrangements in the district were split between a numberof borough, district and catchment bodies.4 The present MDC councillors are drawnfrom across the region.5 However it has no central database of all the MDC controlledor managed land throughout the district.Issues[14] The NZMCA has sought judicial review of the 2020 bylaw because of theintroduction of a blanket default prohibition on freedom camping across the districtunless specifically permitted on a site.[15] NZMCA says there was a failure by the Council to follow the statutoryconsultation process under the Local Government Act 2002 (LGA) before itintroduced the blanket prohibition. It says the bylaws are unlawful under the FCAand/or unreasonable in terms of the Bylaws Act 1910.[16] The Council says that it did consult properly however, despite that assertion, itsays it intends to redo the bylaw consultation process anyway. It has started thatprocess, which it calls the 2022 Bylaw Review.4 The Council was formed in 1981. It replaced Blenheim County Council, Picton County Counciland Marlborough County Council, as well as the borough councils.5 Seven Blenheim Board councillors, three Marlborough Sounds Board councillors, and threeWairau-Awatere Board councillors.[17] The 2020 bylaws have now been in force only twelve months. However, the"redoing" of the consultation process has become a larger task than initiallyanticipated due to extensive floods affecting some of the camping sites and other partsof Marlborough in the past twelve months as well as the continuing impact ofCovid-related issues in the district.[18] NZMCA says that the further consultation will not deal with its concerns and,in any event, it is entitled to a remedy.[19] NZMCA pleads three causes of action:(a) Consultation: the first cause of action relates to failure to consult. TheMDC decided after the public consultation had closed, to adopt adistrict wide blanket prohibition on responsible camping in all but fiverestricted areas (cl 5 of the 2020 bylaw). The MDC failed to exerciseits discretion as to whether it should reconsult on that. A breach of theprinciples of consultation in s 82 of the LGA is alleged.(b) Freedom Camping Act: the second cause of action alleges an error oflaw in failing to take into account the purposes of the FCA, by imposinga blanket prohibition and/or failing to consider the most appropriate andproportionate way of addressing the perceived freedom campingproblem in relevant areas in the district, as required by s 11(2)(b) of theFCA.(c) Bylaws Act: the third cause of action alleges unreasonableness in termsof the Bylaws Act 1910. The 2020 bylaw is unreasonable because itwas a disproportionate response to the perceived problems generatedby freedom camping in the Marlborough District and effectivelyprohibited freedom camping in the local authority areas.[20] NZMCA seeks orders setting aside the 2020 bylaw, in whole or in part, anddeclarations that the Council's decision adopting the 2020 bylaws was unlawful andinvalid.[21] The applicant formulated the key issues relating to the causes of action asfollows:(a) Consultation: did the MDC exercise its discretion not to consult on theproposals for the 2020 bylaws after it removed cl 6.3 (the permissiveclause) of the 2012 bylaw and prohibited freedom camping in all butfive restricted areas?(b) Freedom Camping Act: did the MDC satisfy itself that cl 5 (theprohibition clause) in the 2020 bylaw was the most appropriate andproportionate way of addressing the perceived problem in relation tothe relevant local authority areas by imposing it over the entire district,save for five restricted areas, as required by s 11(2)(b) of the FCA?(c) Bylaws Act: is the 2020 bylaw a disproportionate response to theperceived problems related to freedom camping in the district?Issues (b) and (c) cross-over to some extent.Legal framework[22] As Simon France J said in Coromandel Watchdog of Hauraki (Inc), it remainsa valid proposition that judicial review was intended to be a comparatively simpleprocess of "testing that public powers have been exercised after a fair process, and ina manner, which is both lawful and reasonable".6[23] In this case, the relevant power is the bylaw making power which operateswithin a statutory framework. First, the FCA provisions relating to the making of thebylaws for freedom camping. Secondly, the LGA imposes statutory requirements asto consultation and decision-making on local authorities making bylaws. Finally, theBylaws Act 2011, provides for the deeming of the whole or any part of the bylaw6 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13]; citingWild J in BNZ Investments Ltd v Commissioner of Inland Revenue HC Te Whanganui-a-Tara |Wellington CIV-2006-485-697, 7 December 2006 at [15], commenting on Ministry of Energy vPetrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353 and Wellington International AirportLtd v Commerce Commission HC Te Whanganui-a-Tara | Wellington CP151/02, 23 July 2002 at[44]–[45].invalid if it is ultra vires the legal authority or repugnant to the laws of New Zealand,unreasonable, or for any other cause, invalid.7[24] The FCA defines "freedom camping" as follows:5 Meaning of freedom camp(1) In this Act, freedom camp means to camp (other than at a campingground) within 200 m of a motor vehicle accessible area or the meanlow-water springs line of any sea or harbour, or on or within 200 m ofa formed road or a Great Walks Track, using 1 or more of thefollowing:(a) a tent or other temporary structure:(b) a caravan:(c) a car, campervan, housetruck, or other motor vehicle.(2) In this Act, freedom camping does not include the followingactivities:(a) temporary and short-term parking of a motor vehicle:(b) recreational activities commonly known as day-tripexcursions:(c) resting or sleeping at the roadside in a caravan or motorvehicle to avoid driver fatigue.(3) In subsection (1),—camping ground means—(a) a camping ground that is the subject of a current certificate ofregistration under the Camping-Grounds Regulations 1985;and(b) any site at which a fee is payable for camping at the site[25] The FCA permits freedom camping in a local authority area. This is any areaof land within the district or region of the local authority or controlled or managed bythe local authority).8 Freedom camping cannot be prohibited in all local authorityareas in the district. The relevant provisions are as follows:7 Bylaws Act 1910, s 17.8 Freedom Camping Act 2011, s 6(1).10 Where freedom camping permittedFreedom camping is permitted in any local authority area unless it is restrictedor prohibited in an area—(a) in accordance with a bylaw made under section 11; or(b) under any other enactment.12 Bylaws must not absolutely prohibit freedom camping(1) A local authority may not make bylaws under section 11 that have theeffect of prohibiting freedom camping in all the local authority areasin its district.(2) This section is for the avoidance of doubt[26] The MDC, as a local authority, has the power to make bylaws for freedomcamping under ss 11 and 12 of the FCA, as follows:11 Freedom camping bylaws(1) A local authority may make bylaws—(a) defining the local authority areas in its district or region wherefreedom camping is restricted and the restrictions that applyto freedom camping in those areas:(b) defining the local authority areas in its district or region wherefreedom camping is prohibited.(2) A local authority may make a bylaw under subsection (1) only if it issatisfied that—(a) the bylaw is necessary for 1 or more of the followingpurposes:(i) to protect the area:(ii) to protect the health and safety of people who mayvisit the area:(iii) to protect access to the area; and(b) the bylaw is the most appropriate and proportionate way ofaddressing the perceived problem in relation to that area; and(c) the bylaw is not inconsistent with the New Zealand Bill ofRights Act 1990.(3) A bylaw made under subsection (1) must define a restricted orprohibited area in either or both of the following ways:(a) by a map:(b) by a description of its locality (other than just its legaldescription).(4) However, where a bylaw contains both a map and a description andthere is an inconsistency between the map and the description, thedescription prevails.(5) The local authority must use the special consultative procedure set outin section 83 of the Local Government Act 2002 (as modified bysection 86 of that Act) in—(a) making a bylaw under this section; or(b) amending a bylaw made under this section; or(c) revoking a bylaw made under this section.[27] The local authority, under s 11(5), must use the special consultative procedure(SCP) set out in s 83 of the LGA for making, amending or revoking a bylaw:83 Special consultative procedure(1) Where this Act or any other enactment requires a local authority touse or adopt the special consultative procedure, that local authoritymust-(a) prepare and adopt-(i) a statement of proposal; and(ii) if the local authority considers on reasonable groundsthat it is necessary to enable public understanding ofthe proposal, a summary of the information containedin the statement of proposal (which summary mustcomply with section 83AA); and(b) ensure that the following is publicly available:(i) the statement of proposal; and(ii) a description of how the local authority will providepersons interested in the proposal with an opportunityto present their views to the local authority inaccordance with section 82(1)(d); and(iii) a statement of the period within which views on theproposal may be provided to the local authority (theperiod being not less than 1 month from the date thestatement is issued); and(c) make the summary of the information contained in thestatement of proposal prepared in accordance with paragraph(a)(ii) (or the statement of proposal, if a summary is notprepared) as widely available as is reasonably practicable asa basis for consultation; and(d) provide an opportunity for persons to present their views tothe local authority in a manner that enables spoken (or NewZealand sign language) interaction between the person andthe local authority, or any representatives to whom anappropriate delegation has been made in accordance withSchedule 7; and(e) ensure that any person who wishes to present his or her viewsto the local authority or its representatives as described inparagraph (d)-(i) is given a reasonable opportunity to do so; and(ii) is informed about how and when he or she may takeup that opportunity.[28] When making, amending or revoking a bylaw, s 86 applies as follows:86 Use of special consultative procedure in relation to making,amending, or revoking bylaws(1) This section applies if, in accordance with section 156(1)(a), thespecial consultative procedure is required to be used in relation to themaking, amending, or revoking of a bylaw.(2) The statement of proposal referred to in section 83(1)(a) mustinclude,-(a) as the case may be,-(i) a draft of the bylaw as proposed to be made oramended; or(ii) a statement that the bylaw is to be revoked; and(b) the reasons for the proposal; and(c) a report on any relevant determinations by the local authorityunder section 155.[29] Also relevant to the Council's decision-making are ss 78 and 82, whichprovide:78 Community views in relation to decisions(1) A local authority must, in the course of its decision-making process inrelation to a matter, give consideration to the views and preferencesof persons likely to be affected by, or to have an interest in, the matter.(2) [Repealed](3) A local authority is not required by this section alone to undertake anyconsultation process or procedure.(4) This section is subject to section 79.82 Principles of consultation(1) Consultation that a local authority undertakes in relation to anydecision or other matter must be undertaken, subject to subsections(3) to (5), in accordance with the following principles:(a) that persons who will or may be affected by, or have aninterest in, the decision or matter should be provided by thelocal authority with reasonable access to relevant informationin a manner and format that is appropriate to the preferencesand needs of those persons:(b) that persons who will or may be affected by, or have aninterest in, the decision or matter should be encouraged by thelocal authority to present their views to the local authority:(c) that persons who are invited or encouraged to present theirviews to the local authority should be given clear informationby the local authority concerning the purpose of theconsultation and the scope of the decisions to be takenfollowing the consideration of views presented:(d) that persons who wish to have their views on the decision ormatter considered by the local authority should be providedby the local authority with a reasonable opportunity to presentthose views to the local authority in a manner and format thatis appropriate to the preferences and needs of those persons:(e) that the views presented to the local authority should bereceived by the local authority with an open mind and shouldbe given by the local authority, in making a decision, dueconsideration:(f) that persons who present views to the local authority shouldhave access to a clear record or description of relevantdecisions made by the local authority and explanatorymaterial relating to the decisions, which may include, forexample, reports relating to the matter that were consideredbefore the decisions were made.(2) A local authority must ensure that it has in place processes forconsulting with Māori in accordance with subsection (1).(3) The principles set out in subsection (1) are, subject to subsections (4)and (5), to be observed by a local authority in such manner as the localauthority considers, in its discretion, to be appropriate in anyparticular instance.(4) A local authority must, in exercising its discretion under subsection(3), have regard to—(a) the requirements of section 78; and(b) the extent to which the current views and preferences ofpersons who will or may be affected by, or have an interest in,the decision or matter are known to the local authority; and(c) the nature and significance of the decision or matter, includingits likely impact from the perspective of the persons who willor may be affected by, or have an interest in, the decision ormatter; and(d) the provisions of Part 1 of the Local Government OfficialInformation and Meetings Act 1987 (which Part, among otherthings, sets out the circumstances in which there is goodreason for withholding local authority information); and(e) the costs and benefits of any consultation process orprocedure.(5) Where a local authority is authorised or required by this Act or anyother enactment to undertake consultation in relation to any decisionor matter and the procedure in respect of that consultation isprescribed by this Act or any other enactment, such of the provisionsof the principles set out in subsection (1) as are inconsistent withspecific requirements of the procedure so prescribed are not to beobserved by the local authority in respect of that consultation.[30] As I indicated above the MDC has adopted the phrase "responsible camping"instead of "freedom camping". I use these phrases interchangeably. In addition, noissue is taken in these proceedings with the restrictions placed on responsible campingon the sites and areas where camping is permitted.9 For instance under the 2020 bylawall responsible camping on the listed sites is restricted to camping in vehicles withself-contained waste disposal facilities with the appropriate certification.9 I refer to permitted in the sense responsible camping was permitted albeit with restrictions. Theresites were referred to as "Restricted areas" in the 2020 Bylaw.[31] I now turn to consider the consultation process undertaken by the Council forthe 2020 Bylaw review.Consultation[32] In this case, the NZMCA says that the MDC failed to follow the principles ofconsultation. In particular, it did not provide to persons affected, including theNZMCA, any proposal or information that indicated an intention to change the statusquo default position from allowing responsible camping in the district unless the bylawprohibited or restricted it in the 2012 bylaws, to a blanket default prohibition oncamping in the 2020 Bylaw. It said the statement of proposal, the summary of proposaland the draft of the proposed 2020 bylaws sent to submitters, gave NZMCA and othersno inkling that the MDC was contemplating a blanket ban on freedom camping in thewhole district apart from on sites listed in the bylaws.[33] The parties agreed that Wellington City Council v Minotaur Custodians Ltd(Minotaur) is one of the leading authorities on the point at issue here.10 Minotaurlooked at the consultation requirements generally under s 82 of the LGA.[34] Minotaur Custodians Ltd, a landlord whose tenants were affected by theparking restrictions introduced by the Council, had not been consulted as part of aCouncil consultation process on parking restrictions. The High Court heard that theCouncil had breached its consultation obligations by failing to consult with Minotauras a landlord which was affected by the Council's decision restricting parking.[35] The Court of Appeal allowed the appeal. It concluded it was open to theCouncil in its discretion not to consult with landlords generally. While there was nospecific evidence in the decision papers as to the exercise of the Council's discretionon who to consult, the appellate court said that where an inference can be drawn thatthere was a rational basis for different treatment between affected classes within thecommunity, such an inference should be drawn.11 The Court noted that Parliamenthad expressed a "clear and repeated preference for protecting the Council's right to10 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.11 Wellington City Council v Minotaur Custodians Ltd, above n 10, [68].decide how it wishes to consult". While Minotaur, as a landlord, would be financiallyaffected, it was an indirect effect. It was open to the Council to determine Minotaurwas not a person required to be consulted although it was in a class with others whowere consulted.[36] The NZMCA says the MDC was required to exercise its discretion as towhether it should reconsult, before it adopted a bylaw which significantly changedwhat it had proposed and consulted on.[37] Initially the MDC resisted the claim, saying that the change was not significant.It also pleaded, in general terms, that the statement of proposal attached a draft bylawso it meant everything was open for consultation. However, in her submissions,Ms Besier, for the MDC, conceded that the Council had adopted a proposal which was"materially" different from that upon which it had originally consulted.[38] This was an appropriate concession for reasons I set out in detail below.[39] The real question is whether the MDC did exercise its discretion not toreconsult on that change from the original proposal.The process[40] The Council had published the initial consultation documents as required unders 83(1) of the LGA. This included a revised Statement of Proposal for Review ofMarlborough District Council Freedom Camping Control Bylaw 2012, which statedthat only vehicles with self-contained facilities would be permitted to freedom campin the district. In addition, the proposal listed named areas and sites on whichresponsible camping was prohibited and those on which it would be permitted, albeitsubject to various restrictions and conditions together with a "reformatting" of theresponsible camping site at the Wairau Diversion. The proposal also noted that theCouncil could close any area for various specified reasons, including potential healthand safety issues or for the use of the area for an event, a need to "better protect publicaccess" or for maintenance as required.[41] Included in the consultation documents was a Summary of Changes entitledProposed Changes to the Freedom Camping Control Bylaw 2012, as well a draft ofthe Proposed 2020 Bylaw. The 2020 draft bylaw included the changes described inthe proposal. The prohibited areas included urban areas, a list of roads (includingQueen Charlotte Drive) and various sites including reserves. The proposed bylawincluded a default provision based on the 2012 bylaws that responsible camping in anylocal authority area was permitted other than at listed sites or areas prohibited orrestricted in the bylaws. The default position permitted responsible camping subjectto conditions, including as to time of stay, using a self-contained vehicle, not lightingfires, not restricting public areas and appropriately disposing of waste.12[42] The 2020 Bylaw that was ultimately adopted by the MDC at the end of theprocess contained a new cl 5, headed "Prohibited Areas":No person may responsible camp in any local authority area in Marlborough,unless otherwise provided for in this Bylaw.[43] The bylaw then went on to permit with restrictions responsible camping onlisted sites called "Restricted Areas", subject to conditions (the permitted sites).13 Ageneral provision allowed the Council to close those sites for reasons relating to riskof fire or flood, health and safety issues, the area being used for an event, the need to"better protect public access" or maintenance. Prohibitions of that nature wererequired to be removed when the circumstances described no longer applied.[44] Under the heading "Restricted Areas for Camping" was the followingprovision:No person may responsible camp in any local authority area identified inRestricted Areas unless he or she complies with the restrictions imposed onuse of that particular site.[45] The five sites on which responsible camping was permitted with restrictionswere then listed as follows:12 Marlborough District Council Draft Freedom Camping Control Bylaw 2020, cl 6.1.1.13 Although responsible camping on the listed sites was "restricted", I refer to those as the permittedsites for convenience.(a) Wairau Diversion;(b) Taylor Dam Reserve Upper Level;(c) Renwick Domain Carpark;(d) Wynen Street Carpark; and(e) Lake Elterwater.[46] The MDC says that it was entitled to exercise its discretion not to reconsultbefore it determined to change the default position. It says that a decision not toreconsult was within its discretion and was properly made. Nevertheless, it says it hasnow restarted the consultation process "in the interests of ensuring that all of theCouncil's obligations have been fully met". An indicative timeframe for the re-consultation was set out in the statement of defence which provided for a revised 2022Bylaw being presented to the Council in March 2022. While the timeframe hasslipped, the proposed bylaws are still scheduled to be approved in May 2022.[47] The public consultation had not begun at the time of this hearing. The Councilwas still in the process of completing new site assessments. The Council says it hasput more resources into the exercise than could be deployed for the 2020 review.14The site assessments now cover some 43 sites whereas only 23 were included in thereport for the 2020 bylaw review. The MDC intended publicly notifying the 2021proposals sometime in mid-November 2021, with submissions closing at the end ofJanuary 2022. Hearings will take place in March 2022 and the revised bylaw will goto the MDC in April 2022 with adoption scheduled for May 2022.NZMCA's position[48] The NZMCA says that the reversal of the permissive default position was nota matter that it could have been expected to foresee would occur. Therefore, it made14 The MDC pointed to the fact it had difficulties in even compiling a list of all areas it owned or hadcontrol over.no submission on that possibility. It says many possible sites and areas were likelytaken away by that reversal.[49] It points to the principles of consultation contained in s 82 of the LGA. Theserequire that persons affected be encouraged to present their views, have reasonableaccess to "relevant information", and receive clear information concerning "thepurpose of the consultation and the scope of the decisions to be taking following theconsideration of views presented".15[50] The NZMCA accepts that the MDC had a discretion under s 82(3) and (4) asto how it consulted. In exercising its discretion it was required to take into accountthe extent to which the views of persons who might be affected were known to thelocal authority and the nature and significance of the decision on the matter as well asthe costs and benefits of any consultation process or procedure.16 However, NZMCAsays that even taking into account the wide discretion that the Council has to determinehow it would consult, in this case, despite a significant change in the proposalfollowing the close of consultation, it did not turn its mind to exercising its discretionas to whether another round of consultation should be undertaken.[51] Ms Besier, for the MDC in her submissions, said that it was impossible to sayhow many responsible camping sites had been removed from the local authoritydistrict by the change in the default position. Due to the amalgamation of thepreceding local government bodies in the local government reforms, there was no onedatabase of land owned or controlled by the MDC to allow it to ascertain the extent ofthe change.[52] Ms Besier said the district was very large and there were many roads and piecesof land that would be within the definition of local authority land for the purposes ofthe FCA. The task of ascertaining that, was beyond the resources of the Council toascertain. However, she said there was no evidence of lack of availability ofresponsible camping sites in the district to date.15 Local Government Act 2002, s 82(1)(c).16 Section 82(4).[53] Ms Besier submitted that the change in the default position was significant butthat:(a) the Council had a discretion whether or not to reconsult following thedecision to adopt the blanket default prohibition, subject to site specificexceptions; and(b) the Council was aware of the NZMCA's views due to ongoingdiscussions between it and the MDC officials.[54] Ms Besier could point to no evidence that indicated that NZMCA had beenasked for or expressed a view to the Council at any time concerning a districtwideprohibition default. It is fair to say NZMCA's submissions were all directed atexpanding the areas in which responsible camping was permitted, particularly in theurban areas. It could be anticipated, as Ms Besier submitted, what its attitude wouldbe to a proposal of a blanket prohibition. She acknowledged, however, that ifsubmitters, such as NZMCA, did know that the permissive default position might bereversed, it may have been able to gather some evidence on the point in that regard.[55] Ms Besier also confirmed there was nothing specific to be found in the MDCdecision papers to evidence that it had actually considered whether or not it shouldreconsult on the change to the default position.[56] Councillor Oddie, the chairperson of the Subcommittee, explained the processthat the Subcommittee had undertaken. He said the change in default position hadoccurred because the councillors, in debating the issues with the benefit of the publicsubmissions, considered it would be more effective to provide a blanket defaultprohibition and identify sites where responsible camping was allowed, rather than, asit had been attempting to do, identify every possible site and area where submittershad said that responsible camping should be restricted or prohibited, as it had done forthe 2012 bylaw.[57] Councillor Oddie said there had been numerous submissions from the publicon the problems associated with responsible camping generally through the district.These provided support for the Council's decision to introduce a default blanketprohibition. He agreed that at the time the consultation documents had been sent out,there had been no intention to provide a default blanket prohibition.Analysis on consultation[58] The MDC was required to follow the special consultative procedure under theLGA. This requirement was imposed not only by the LGA, which required theprocedure to be followed when making bylaws, but separately under the FCA. TheFCA required the special consultative procedure be followed in making, amending orrevoking a bylaw restriction or prohibiting freedom camping.[59] The special consultative procedure that the MDC followed required it toprepare and adopt a statement of proposal, and if it "considered on reasonablegrounds" that it was necessary "to enable public understanding of the proposal", asummary of the information contained in the proposal was to be prepared. Theproposal was to be made widely available "as is reasonably practicable as a basis forconsultation".17 That summary of information was required under s 83AA(a) to be afair representation of the major matters in the statement of proposal.18[60] In addition, under the statutory "Principles of consultation" set out in theLGA,19 persons who will "or may be affected by, or have an interest in, the decisionor matter should be encouraged by the local authority to present their views to the localauthority".20 Persons invited or encouraged to present their views must be given "clearinformation by the local authority concerning the purpose of the consultation and thescope of the decisions to be taken following the consideration of the viewspresented".21 Persons who wish to have their views on the decision or matterconsidered must be provided with a reasonable opportunity to present those views ina manner and format appropriate to the preferences and needs of those persons.2217 Local Government Act 2002, s 83(c).18 Section 83AA(a).19 Section 82.20 Section 82(1)(b).21 Local Government Act 2002, s 82(1)(b).22 Section 82(1)(d).These the views should be received by the local authority with an open mind and begiven due consideration in decision-making.23[61] The local authority has a discretion as to the manner in which it observes theprinciples of consultation in any particular instance.24 In exercising that discretion,the authority must take into account the extent which the current views and preferencesof people affected or having an interest in the decision are known to the local authority,the nature and significance of the decision or matter and its likely impact from theperspective of persons who may be affected or have interest in the decision as well asthe costs and benefits of any consultation or process.[62] This case differs from Minotaur in that Minotaur was only indirectly affectedby the Council's decision. It could be inferred that the Council had turned its mind towho to consult and it was open to it to decide not to consult persons in the position ofMinotaur.[63] This case is more analogous to Nelson Gambling Taskforce Inc v Nelson CityCouncil.25 The gambling policy in the Nelson Gambling was under review. TheNelson Council had sent out a detailed proposal of changes to the existing policy. Theproposal was to tighten the policy and restrict the number of gaming machines. TheCouncil ultimately decided to loosen the policy by not reducing the cap on machinenumbers as much as the proposal had contemplated and prohibiting the siting ofmachines in certain locations but relaxing the siting of machines near other locations,such as playgrounds and kindergartens. The High Court had no hesitation inconcluding the changes did not comply with the special statutory consultationrequirements. It noted that the Council was not starting with a clean slate but wasmaking changes, therefore, it could not say everything was up for review.[64] The 2020 summary of proposed changes to freedom camping controlled bylawin summary were: sites that were previously available for freedom camping were tobe closed (Koromiko Recreation Reserve, Collins Memorial Reserve, Brown River23 Section 82(1)(b).24 Section 82(3).25 Nelson Gambling Taskforce Inc v Nelson City Council, HC Whakatū | Nelson, CIV-2010-442-368,7 September 2011.Reserve, Elterwater Reserve and Ohauparuparu Bay); on some further sitesresponsible camping would be prohibited (Marfells Beach Road and GrovetownLagoon; and some new sites were to be opened (Ward Domain and two new sites inPicton). In addition, self-contained vehicles were to be required in all responsiblecamping sites in the district and the local authority was authorised to close sites forlisted reasons such as for health and safety or council events. The revised statementof proposal set out in more detail the proposal to close some sites and to open othersand to allow only "self-contained" vehicles to be used. Those changes were set out inthe draft of the proposed Marlborough District Council Freedom Camping Bylaw2020 made available to submitters.[65] A generous approach is normally taken by the Courts to local authoritydecision-making. If it can be inferred that the authority has followed a decision-making process, then the Court will do so. However, consultation is not just a process.It exists to promote fair decision-making. It allows interested parties to have inputinto the decision-making. In this case, the Council has specifically acknowledged thatthe NZMCA has a role to play in the management of responsible camping in thedistrict. This was referred to in the Draft Decision Report which had been preparedby the Subcommittee and was subsequently adopted by the Council.[66] The MDC submitted that the change to the finalised bylaw was brought aboutby consultation and it would be a disproportionate requirement for Council to go backand require further consultation when there is a change brought about by publicsubmissions. Ms Besier said this was a policy decision and the Council'sdecisionmakers are held accountable by the ratepayers at the polls. She relied on theCourt of Appeal comments in Minotaur,26 that a council cannot be required to"meticulously record reasons" for its approaches to procedural details as if it were aCourt. Ms Besier said that it would limit the democratic accountability of thedecisionmakers.[67] The local authority is the decision maker who is entrusted with the decision asto the best way to regulate freedom camping. The decision is one of policy and of26 Wellington City Council v Minotaur Custodian Ltd, above n 10, at [59].particular importance to those who live in the district and the MDC. However thespecial consultative process requires the Council to follow a process before making adecision. It is also noteworthy that it is not just local constituents who are entitled tomake submissions.[68] In this case it is not the failure to reconsult that is the issue here but rather thefailure to consider the method of consultation when a significant change to theproposal which had been consulted on was put on the table. The problem is that incircumstances where there were persons known to the Council who would be directlyaffected by the change which was a significant change to the whole approach toregulating responsible camping. There is no material that would allow me to infer thecouncil had turned its mind to the issue of consultation. As was noted in Minotaur thecouncil is not required to meticulously minute every decision in its process, howeverthe level of information in the decision papers should be sufficient to enable the courtto satisfy itself that the councillors had, or at best appeared to have, considered theissue of consultation.[69] The circumstances suggest that the MDC did not turn its mind to consider thelikely impact or significance of the change of position. It did not even know what thatimpact would be, according to Ms Besier. In addition, it appears unlikely thecouncillors turned their mind to a consideration of the costs and benefits of any furtherconsultation or the options for limited consultation on the changes. These are mattersthat the Council was required to have regard to when considering the method ofconsultation.[70] In those circumstances, the change was significant and the procedure requiredby the legislation would have "little worth if this process was found to be compliant".27[71] I conclude that the MDC did not exercise its discretion as to the appropriatemanner in which it should consult before making a decision which was significantlydifferent than contained in the proposal on which it had originally consulted. This isa breach of its consultation obligations under s 82. The first cause of action is madeout.27 Nelson Gambling Taskforce Incorporated v Nelson City Council, above n 25, at [27].[72] I deal with relief below.Second cause of action: Freedom Camping Act 2011[73] The next issue is whether the 2020 bylaw was the most appropriate andproportionate way of addressing the perceived problem with freedom camping in allareas of the district. The applicant says the use of a blanket default prohibition clausewas neither.[74] This is pleaded as an error and a breach of the FCA. The starting point is thatbylaws may be made under the Act to prohibit or restrict freedom camping which isotherwise permitted in any local authority area.28 Those bylaws must comply withs11(1)-(4) of the FCA:11 Freedom camping bylaws(1) A local authority may make bylaws—(a) defining the local authority areas in its district or region wherefreedom camping is restricted and the restrictions that applyto freedom camping in those areas:(b) defining the local authority areas in its district or region wherefreedom camping is prohibited.(2) A local authority may make a bylaw under subsection (1) only if it issatisfied that—(a) the bylaw is necessary for 1 or more of the followingpurposes:(i) to protect the area:(ii) to protect the health and safety of people who mayvisit the area:(iii) to protect access to the area; and(b) the bylaw is the most appropriate and proportionate way ofaddressing the perceived problem in relation to that area; and(c) the bylaw is not inconsistent with the New Zealand Bill ofRights Act 1990.(3) A bylaw made under subsection (1) must define a restricted orprohibited area in either or both of the following ways:28 Freedom Camping Act 2011, s 10.(a) by a map:(b) by a description of its locality (other than just its legaldescription).(4) However, where a bylaw contains both a map and a description andthere is an inconsistency between the map and the description, thedescription prevails.[75] Also relevant is that the bylaws must not have the effect of prohibiting freedomcamping in all the local authority areas in the district.29[76] The MDC could therefore make bylaws "defining the local authority areas inits district or region where freedom camping is restricted and the restrictions that applyto freedom camping in those areas"30 as well as "where freedom camping isprohibited".31 The bylaw may define the restricted or prohibited area either byreference to a map or by a description of its locality (other than by its legal description)or in any other appropriate manner. Where the bylaw uses both a map and adescription, the description prevails in the event of an inconsistency.32 However, thebylaws cannot have "the effect of prohibiting freedom camping in all the localauthority areas in its district".33 The areas however defined must then be subject tothe s 11(2) analysis.[77] In essence s 11(2) requires the local authority to carry out a risk analysis usingthe three factors set out in s 11(2)(i) to (iii) using the criteria in s 11(2)(b) – that isassessing that the bylaw is the most appropriate and proportionate response to each ofthe factors in the relevant areas in the district.[78] Mr McNamara said, on behalf of NZMCA, that there was no contemporaneousevidence that the MDC had considered the requirements of s 11(2)(a) or been satisfiedthat all areas in the district satisfied those criteria. In addition, there was no evidencethat the MDC satisfied itself that cl 5 of the 2020 Bylaws (the default prohibition) was29 Freedom Camping Act 2011, s 12.30 Section 11(1).31 Section 11(1)(a) and (b).32 Section 11(4).33 Section 12(1) and (2).the most appropriate way of addressing the perceived problem in relation to each area,as required by s 11(2)(b) of the FCA.[79] The MDC says that it complied with the requirements of the FCA in that it wassatisfied as to the matters set out in s 11 for all areas in the district. In theirsubmissions, counsel for the MDC summarised the consultation submissions received.It is not possible to say, from that, how the Council defined the relevant areas in thedistrict or whether all areas in the district were the subject of a s 11(2) analysis.[80] The question is, can it be taken from the information that was in front of theCouncil that the requirements of s 11(2) were met?[81] It is therefore necessary to consider the background material and reasons givenby the Council for its decision to adopt the proposed 2020 bylaws.Material before the Council[82] The original MDC Freedom Camping Control Bylaw 2012 was enacted on26 November 2012. Following this, two summers of freedom camping in the districtwere monitored. These years were referred to the MDC as the "trials".34 Reports onthose trials went to the Assets and Services Committee of the MDC, as a result ofwhich amendments were made to the 2012 bylaw and approved on 15 December 2016.These generally introduced further restrictions on responsible camping in the district.[83] From April 2017 to May 2019, a number of submissions on freedom campingwere made in other consultation processes. Such submissions were included in theconsultation feedback on the 2017/2018 annual plan, the 2019/2020 annual plan, the2020/2021 annual plan, and the 2018 – 2028 long term plan.[84] In October 2019, the Council engaged a consultant, Paul McArthur, to carryout an assessment of freedom camping in the district over the 2019/2020 summerseason.34 Only self-contained waste vehicles were permitted to camp on the default permitted sites andareas.[85] Mr McArthur produced a report commissioned by the MDC, titled the"Responsible Camping Review for Marlborough District Council", dated May 2020.35This was accompanied by a specific site analysis of twelve sites under the title,"Marlborough District Council's Responsible Camping Review Site Assessments".[86] The purpose of the McArthur Report was to identify a "more strategic andlong-term sustainable approach" to the management of camping for visitors to theregion. It looked at past, present and future possible patterns of budget campers aswell as various management responses undertaken by the Council.[87] The scope of the review was to consider all camping activity within theMarlborough District with a focus on the demand for low cost or free camping. Itconsidered the supply of existing facilities and sites provided by others as well as theCouncil in assessing future facilities.[88] For each site Mr McArthur did a detailed analysis. These referred to the s 11(a)FCA criteria: to protect the area; to protect the health and safety of visitors and toprotect access to the area. Each criterion was assessed for risk on that site and arecommendation was made as to whether the response was proportionate or not. Asample of the site analysis is attached to the judgment, using the Wynen Street carparkas the example.[89] Twelve named freedom camping sites were specifically reviewed in that report.The report noted that there had been a significant emphasis by Council staff andcontractors on providing good quality information to freedom campers on campingopportunities and the rules and expectations when visiting Marlborough. To managethe risks, the rangers and compliance patrols had been using an educational approach,in the first instance, before using formal enforcement powers in cases of non-complying freedom camping. The report noted a low number of complaints regardingfreedom camping had been recorded – seven complaints over three years. With theemphasis on education, infringement notices were not issued in most cases until35 Paul McArthur Responsible Camping Review for Marlborough District Council (May 2020) ["TheMcArthur Report"].warnings had been given which meant there was a low number of infringementnotices.[90] The report also noted that verifying the self-contained status of a vehicle hadbeen an ongoing problem. A high number of small vans claimed the certified self-contained status "either through incorrect certification or by accessing fraudulentlyobtained compliance stickers".[91] Insofar as demand and supply was concerned, the report noted thatMarlborough hosted many domestic and international travellers. There had been anincrease of 16 per cent from 2015 to 2019 (in that five-year period increasing from152,659 to 177,290). It noted the closing of the overseas borders following the arrivalof Covid 19 would likely see the plummet of international tourism in the medium toshort-term. Therefore, the overall total of visitor numbers to the district would besignificantly lower over the next few years as a result of that.[92] The report noted there were 29 registered camping grounds within the MDCdistrict, of which two were provided by the Department of Conservation. Two wereowned by the Council and leased to private operators. At the time of the report, therewere 13 sites identified as options for freedom camping sites under the 2012 Bylaw.Six of those permitted non-self-contained vehicles and four allowed tents.[93] The report stated that significant capacity remained in camping sites but thatoccupancy was variable. Some coastal camping grounds had short periods when theywere full. Nevertheless, at most times of the year, capacity remained. Other moreremote camp sites receive but a few overnight visitors all-year-round.[94] The analysis was carried out on the combined availability of commercial andother camp sites. The report concluded that while there was likely to be campingpressure on sites, there remained a surplus of sites available, even in the busiestmonths. It noted this did not mean that campers would utilise available capacity northat there were no issues in some sites where pressures did exist.[95] The report also pointed out the environmental cost and the documentedexamples of the impacts of irresponsible campers, particularly in relation to thedisposal of human waste and litter, irrespective of the facilities available on site orwithin vehicles and that this behaviour could have a significant effect at the relevantlocation. Financial costs were also incurred by the Council in the management ofresponsible camping, including the provision and serving of facilities, and compliancecosts.[96] It referred to the social costs, including the annoyance of members of localcommunities, real or perceived environmental impacts, and concerns relating tophysical detraction from local reserve amenities through blocking access, blockingviews or devaluing property. The feedback from Mr McArthur's communityconsultation included concern about damage to the environment and communitiesfrom rubbish and sewerage, the driving on sensitive areas, access being blocked, aswell as the difficulty of undertaking enforcement over a wide area of so many sites.Concern had been expressed regarding the safety of some sites for camping due toflooding concerns and loss of recreational access. The report noted a general desire toclose camping areas where significant natural areas were threatened or there was a riskof fire.[97] The McArthur Report also referred to the concerns by organisations such asthe NZMCA about the number of prohibited areas, the need to be proportionate (notto take into account irrelevant considerations) and about the consultation processeswhen making the bylaw changes.[98] The report noted there had been varying approaches taken by other localauthorities to the management of freedom campers. Many provided sites for onlycertified self-contained vehicles. A few councils relied on a default "no camping" rule.[99] The report also looked at a number of management techniques, short of bylawcontrols. However, it said that the potential adverse effects of freedom campingwithout a bylaw was not a viable option. There were areas within Marlborough thatrequired protection from the adverse impact that freedom camping could have, and thebylaw was effective to manage the issues.[100] The report approved the MDC's 2012 Bylaw approach, which was to prohibitfreedom camping in urban or high visitor use areas, as well as in sensitive or historicalproblem areas. The report said this was appropriate and consistent with the principlesthat the FCA. The report recorded: "the reasons are clearly assessed and identified foreach prohibited area".36[101] The report noted it was reasonable to generally restrict camping toself-contained vehicles on Council-owned land outside of locations where aprohibition may be necessary. It then went on to note that if specific locationsavailable for freedom camping were not identified the activity would not go away.Instead, freedom campers might disperse and use a range of locations on whichfreedom camping was not permitted. It would be impossible for compliance staff tobe in all places in the district at the same time. Nor could the Council take action iffreedom camping took place on land not administered by it.[102] On 9 July 2020, following the receipt of that report, the Council approved acommencement of the 2020 Bylaw review (of the 2012 Bylaws) and appointed thefreedom camping Subcommittee of the Council, chaired by Councillor Oddie, toundertake it, as well as approving the timeline for the bylaw review process.[103] On 6 August, the Council adopted a revised Statement of Proposal for Reviewof Marlborough District Freedom Camping Control Bylaw 2012 (the statement ofproposal). This included a Summary of Proposed Changes to the Freedom CampingControl Bylaw (summary of changes) as well as a draft of the proposed MarlboroughDistrict Council Freedom Camping Bylaw 2020 (draft bylaw).[104] The McArthur Report was referred to in the Statement of Proposal and wasavailable on the MDC website.[105] Public consultation ran from on 7 August 2020 and closed on 7 September.The Subcommittee heard submissions from 14 to 16 September.36 The McArthur Report, above n 35, at 32.[106] Before the public consultation hearings on 11 September 2020, theSubcommittee members were provided with a staff report (Staff Report) on thesubmissions received. This report said many submitters had stated that the Councilshould prohibit freedom camping across the district. It listed the most commonlymentioned reasons, as follows:• Impact on local accommodation businesses• We need higher quality tourists who do want to stay and spend moneyin Marlborough• There are already existing Department of Conservation and privatecampgrounds• Camping should be user pays• Use of ratepayer money to provide facilities for campers• Impacts on the environment with rubbish and toileting frequentlydescribed as issues• Campers intimidating locals• Council should be proactively seeking a change in the statute withcentral government• The number of sites to be provided• Prohibition in urban areas but enable in rural area• Impacts of Covid-19• Health and Safety reasons includes hygiene and fire being lit[107] The Staff Report also noted that the FCA prevented the Council from simplyprohibiting camping.[108] The MDC staff involved in the bylaw review process, in particular Ms Tito andMs Craighead, filed affidavits referring to the submissions received.[109] Ms Tito, the Manager of the Parks and Open Spaces section of the Propertyand Community Facilities Department of the MDC, noted that she had managed thefreedom camping portfolio and the bylaw review process. Ms Tito noted there were350 written submissions on the notified draft 2020 bylaw. There were a number ofsubmissions supporting freedom camping, including some who opposed the use of acertified self-containment standard for freedom camping. There were also numeroussubmissions which would fall into the category of protecting the area; protectinghealth and safety of people who may visit the area; and protecting access to the areabut were non-specific as to which part of the local authority they applied. There werealso many site-specific submissions.[110] Ms Craighead, a planner in the parks and open spaces section of the Propertyand Community Facilities Department, assisted in the review of the Freedom CampingControl Bylaw 2012 and prepared the staff report on the submissions to the draft 2020bylaw. Ms Craighead presented an overview of the evidence and the Subcommitteedeliberations. She said that the councillors had been made aware that the evidencewas that free camping sites "in proximity to main touring routes" were no longer ableto be sustained due to their popularity and the cost to the environment andcommunity". Ms Craighead said that the councillors were aware of this throughsubmissions received on the annual plans and Mr McArthur's report. Ms Craigheadnoted of the 350 submissions received and many were site-specific but many were alsogeneral. She said her impression in preparing the summary was that those seeking atotal prohibition on freedom camping cited several reasons relevant to s 11(2) of theFCA considerations. These included impacts on the environment with rubbish andtoileting, campers intimidating locals and sites near residential areas.[111] Ms Craighead's summary of submissions indicated that submissions had beenreceived in general terms in relation to all parts of the district, including in relation tothe eastern areas such as Awatere Valley in the eastern part of the district. Along withother parts of the district, the points raised in relation to the Awatere Valley were incommon with other parts of the district that there was fire risk and rubbish issues. Inaddition, the submitters indicated that there were biosecurity risks with campers' dogsthreatening stock in the area. A common issue raised was the fire risk, the problemswith rubbish and human waste, traffic safety and access to reserves and coastline bylocal visitors being blocked.[112] A number of submitters said that prohibitions on some roads in theMarlborough Sounds should extend to other roads as many others were dangerous.For instances, submissions in relation to Rangitoto ki te Tonga | D'Urville Island notedit had not been included as a prohibited area for freedom camping, while the Island'sroads had similar characteristics to the French Pass Road, which had been madeprohibited areas. Similar concerns were raised in relation to other roads in theMarlborough Sounds. There were also reported problems of "migrations", for instancewhen a Department of Conservation campsite in Elaine Bay was full, freedomcamping occurred on the roadside. This affected access for parking and use of the boatramp. The Elaine Bay Community Association sought the addition of Elaine Bay tothe French Pass Road's prohibited area to reduce the effects on access to the area andfor health and safety reasons.[113] There were a number of general complaints raised as a result of freedomcamping. These included, rubbish being dumped and left behind; and the naturalenvironment being used as a dumping ground for raw sewerage and grey water, impacton water and marine life, visual amenity (washing hanging from trees) and noise fromcampers arriving late at night, affecting residents. In general terms, Ms Craigheaddescribed the health and safety issues by submitters in terms of s 11(2)(a)(ii) of theFCA as including:72. Health and safety issues described by submitters in terms ofs.11(2)(a)(ii) of the FCA included:• hygiene related matters including defecating, urinating, spitting fromcleaning teeth and unsanitary bathing (Kevin Wilson, Christine Hall);• traffic hazards with vehicles entering and leaving the reserve (KevinWilson);• aggression from non-com pliant campers to residents (Kevin Wilson,Kathryn Omond);• fire risk (Kevin Wilson, Kathryn Omond); and• camping on the emergency helicopter pad (Kevin Wilson, KathrynOmond).[114] Ms Craighead also noted that even before the 2020 bylaw, there were manykilometres of roads within the Marlborough Sounds where freedom camping wasprohibited. She noted there were submitters that identified some roads had similarcharacteristics to other prohibited areas and therefore should be treated similarly oridentified other reasons for wanting other roads prohibited for freedom camping. Shegave some examples relating to D'Urville Island Ward and Cape Campbell Road, PortUnderwood (seeking to include Tumbledown Bay Road), Anakiwa Road and others.[115] In response to a comment by Mr Lochore in his affidavit, Ms Craigheadrejected that there was just one submission that raised the issue of fire risk in the eastMarlborough coast and she pointed out a number of submissions raising that issue inwritten or oral submissions, both in that area and across the district.[116] In relation to demand for freedom camping sites, Ms Craighead said, even witha reduction in the number of sites to five (which was proposed),37 the two larger sitesbeing the Wairau Diversion and Wynen Street, had not been at full capacity over the2020/2021 summer.[117] The Subcommittee met to deliberate on 18 September, 19 October and9 November. The change in the proposed default position occurred in that period.[118] The Council considered the report of the Subcommittee entitled "ProposedResponsible Camping Control Bylaw 2020" at an Extraordinary Meeting and adoptedthe recommended bylaw.The deliberations of the Subcommittee/Council[119] Mr Oddie said his review of the submissions indicated that the topic of freedomcamping was of considerable concern to many of his constituents and many had strongviews against freedom camping. He noted that the verbal submission process hadenabled the members to hear in detail how submitters felt the community values werebeing eroded by allowing freedom camping in their communities.[120] The councillor noted that during the deliberation process, submitters hadrequested that freedom camping be prohibited on a number of other sites and locationsacross the district. Mr Oddie said the Subcommittee's views on changing the defaultposition came about as follows:37 From 13 sites in the 2012 Bylaws.42. During the deliberation process the Subcommittee considered thatthere had been a number of other areas requested for prohibitionacross the district and at specific locations, such as Tumbledown BayRoad, D'Urville Island, Awatere Valley Road and the Ward area.Councillor Croad then suggested, and the Subcommittee agreed, torequest from staff a map of the Marlborough District showing currentand proposed areas on roads prohibited for freedom camping acrossthe district. He commented that it would be easier for visitors toMarlborough to understand the freedom camping proposal if therewas a prohibition of freedom camping across the district unless it wasspecifically allowed in a range of identified locations.43. Councillor Croad's comments in a way changed the Subcommittee'sthinking. We were also concerned about responding to writtensubmissions and submitters at the hearing regarding their annoyanceabout freedom campers in the district. My view is that all thesubmissions had had an impact on the Subcommittee. So when westarted considering our decision, and looked at all the additional areasrequested by submitters for prohibition, and importantly the reasonsfor the requested prohibitions, the Subcommittee questioned whetherfreedom camping should be more constrained than it had beenprovided for in the draft 2020 bylaw. In our deliberations we were allvery mindful of Council's obligations under the Act. Ultimately, weconsidered that the right balance could be achieved by restrictingfreedom camping to 5 sites.[121] A draft decision report as well as a Post-Hearing Site Assessment wereprovided to the Subcommittee. On 15 November 2020, these were also sent to theDeputy Mayor and Mayor, who were not on the Subcommittee. There were a numberof emails exchanged concerning the reasons, particularly in relation to the proposedchange from a default permission for responsible camping except in areas or siteslisted to a default prohibition except on listed sites. The reasons on the decision reportwere fleshed out before it was put before the full council.[122] The report went to the full Council attached to a paper entitled "ProposedResponsible Camping Control Bylaw", which was an item on the agenda of anExtraordinary Council meeting held on 27 November 2021.[123] The bylaw came into effect on 1 December 2020. Judicial review proceedingswere filed some six months later on 20 May 2021.The MDC Decision[124] Councillor Oddie pointed to the information that the members had before themas a result of the public consultation. It indicated the widespread concerns. He noted:46. The Proposed Bylaw Report made the following points:a. The comprehensive assessment of sites undertaken byMr Paul McArthur used a review matrix which aligned withsection 11 (2)(a) of the Act to ensure that the responsiblecamping sites in the 2020 Bylaw would satisfy therequirements in that section ;b. The decisions made by the Subcommittee to meet a level ofmanagement of responsible camping which would satisfy theAct, and respond appropriately to the local community'sviews, included that responsible camping would be permittedat five sites in the Marlborough region ; andc. Council agreed to reduce the number of responsible campingsites to five on the basis that the Council had a comprehensivesite assessment undertaken of all responsible camping sitesand there has been sufficient discussion on the sites in thecommunity and consideration by the Subcommittee as part ofthe Bylaw Review process overall .[125] Councillor Oddie summarised the reasons for the Council decision and referredto the Final Decision Report and its attachments, as follows:47 a. Overall, in considering the submissions received andthe evidence presented, the Subcommitteeconsidered there had been an inappropriate level ofimpacts resulting from freedom camping at locationsthroughout Marlborough and that over time theseimpacts are becoming unsustainable. This increasein the number of visitors has seen the nature of someareas where freedom camping has been enabledchange considerably. In recent years the frequency ofoccupation has increased, including over the winterperiod, with some sites being occupied many nightsthroughout the year which has not allowed the sitesto recover from sustained use (as they might havepreviously done over winter)... .b. The Subcommittee confirmed the five RestrictedAreas to be appropriate for freedom campingsatisfying the provisions of the Act (as set out in theMay 2020 site assessment report and the November2020 Post Hearings Site Assessment Update report)as well as the Council's high level objectives forfreedom camping. c. Paragraphs [68] to [74] of the Decision Report set outthe reasons for the amendment to the district wideprovision for freedom camping. They provide thatthe Subcommittee's overall approach was to identifythose areas where camping is considered appropriateand the effects of camping can be sustainablymanaged, and identified those locations as the fiveRestricted Areas, which provided capacity ofupwards of 120 spaces for vehicles nightly.48. I consider that the Decision Report provided a complete andaccurate summary of the Subcommittee's decision making. Ialso emphasise however that the presentations at the Hearingwere influential for the final decision as the majority ofsubmitters were opposed to freedom camping and presentedstrong arguments in opposition.[126] The Decision Report adopted by to the Council, noted:386. In making their decisions the Hearings Panel has reviewed thefollowing:• Responsible Camping Review for Marlborough District CouncilMay 2020;• Marlborough District Council Responsible Camping Review SiteAssessments May 2020;• Submissions lodged on the proposed bylaw and evidencepresented at subsequent hearings;• Schedule of decisions attached to this Decision Report; and• Post Hearings Site Assessment Update November 2020.7. The Hearings Panel records that it considers the provisions of the draftbylaw are the most appropriate and proportionate way of addressingproblems in relation to all areas covered by the draft bylaw as requiredby section 11(2)(b) of the Freedom Camping Act 2011.[127] Paragraphs [68]-[74] of the Decision Report of 27 November 2020, referred toby Mr Oddie, read as follows:68. The current and proposed bylaws both include a provision that enablesfreedom camping across the District where an area is not otherwise38 Hearings Panel of the Marlborough District Council Decision Report of the Hearings Panel toMarlborough District Council and submitters in respect of Draft Marlborough District CouncilResponsible Camping Control Bylaw 2020 (27 November 2020) ["Decision Report"].restricted or prohibited. Any camping under this provision is subjectto a number of general restrictions as follows:● Spending no more than two consecutive nights at a site in anyfour week period;● Camping in a CSC vehicle;● Lighting no fires;● Not restricting access to the area; and● Appropriately disposing of all waste.69 As indicated earlier in this Decision Report, the Hearings Panelconsiders there have been impacts from freedom camping on theMarlborough environment that have become unsustainable over time.The issues have arisen because of a significant increase in the numberof freedom campers visiting the District, the type of vehicles somecampers move around in and the increased frequency of occupationof freedom camping sites. The behaviours of some campers have alsobeen noted by the Hearings Panel as a cause of concern to somecommunities.70. The Hearings Panel's overall approach to freedom camping is toidentify those areas where camping is considered appropriate and theeffects of camping can be sustainably managed. These locations inMarlborough have been identified as the Wairau Diversion, RenwickDomain, Taylor Dam Reserve - upper level, Wynen Street carpark(Blenheim) and Lake Elterwater. These five sites have the capacity forupwards of 120 spaces for vehicles nightly. This is in addition to themany other opportunities for camping available through commerciallyrun campgrounds and Department of Conservation campgrounds andfreedom camping areas". The Council's sites also provide a range ofoptions for campers from urban through to rural and coastal locations.71. The Hearings Panel noted that much of the land that is controlled ormanaged by the Council is already prohibited for freedom campingunder the provisions of the Reserves Act 1977 (RA). Unlike the FCAwhere freedom camping is permitted everywhere unless otherwiserestricted or prohibited, under the provisions of the RA the reverseapplies - see paragraphs 108 to 111 for more discussion on this.72. The district wide provision currently applies to many local roadsaround the District that are narrow and windy. These roads have fewareas for vehicles to pull completely off the formed road while stayingon the legal road in a safe manner. This is a significant reason behindthe prohibition for camping on the Marlborough Sounds roads.73. The Hearings Panel also became more aware of the concerns oflandowners submitting in opposition to freedom camping from theeast Marlborough area because of fire risk. This is becoming moreevident in eastern areas of New Zealand generally. However. giventhat many of Marlborough's local roads in rural areas traverse longvalleys, there are concerns about adequate escape routes during a fireevent for those camping in these locations. Having campers in knownlocations rather than situated up valley roads means management ofpeople is easier during hazard events. Several submitters also raisedconcerns about the potential for accidental fires from campersthemselves when using camp stoves.74. When considering all of these factors, which are consistent with theprovisions of the FCA in enabling prohibitions to apply, the HearingsPanel reached the decision that the proposed district wide provisionenabling freedom camping should be removed from the draft bylaw.The consequence of this is that unless freedom camping occurs in oneof the five sites identified above it will be prohibited elsewhere in theDistrict[128] Councillor Oddie said at the full Council meeting there had been questionsabout the proposals to enable councillors outside the Subcommittee to understand thereasoning but, eventually, the report was accepted and adopted. The councillors hadaccess to all submissions and documents. The councillors requested the Council workwith NZMCA on allowing more freedom district sites if requested but only once theaffected communities had been consulted again.[129] The report went on to reiterate that "for the avoidance of doubt" freedomcamping could only take place at the five locations.39 Everywhere else in the district"will be prohibited for freedom camping". The related mapping in the draft bylawwas to show only those areas where freedom camping could occur.40[130] The report also noted that RMA requirements meant that resource consentswere required for four of the sites.41 It also referred to the requirement of permissionunder the Reserves Act 1977, that the MDC had ministerial delegation to grant thatconsent by reserve management plans permitting camping needed to be put in placebefore such permissions could be granted.42[131] The decision to adopt the 2020 Bylaw was recorded in the Council minutes atthe meeting on 27 November 2020, as follows:There have been impacts from freedom camping on the Marlboroughenvironment that have become unsustainable over time. Issues have arisen39 See above at [45]. All locations are subject to restrictions, including the overarching requirementthat only self-contained vehicles were permitted to camp on any of the sites.40 Decision Report, above n 38, at [76].41 At [114].42 At [108]–[113].because of an increase in campers, the type of vehicles used, increasedfrequency of occupation of sites and the behaviours of some campers.Much of the land that is controlled or managed by the Council is alreadyprohibited for freedom camping in terms of the provisions of the Reserves Act1977. This is because camping has not been provided for in reservemanagement plans or otherwise approved by the Council.There are health and safety issues for camping along many of the local roadswhich are windy and narrow and there is also an increased fire risk apparentin many rural locations in the east Marlborough coast.When considering all of these factors the decision reached was that the districtwide provision enabling freedom camping should be removed from the draftbylaw. The consequence of this is that unless freedom camping occurs in oneof the five sites identified above it will be prohibited elsewhere in the District.Decision: The district wide provision for freedom camping be removed fromthe draft bylaw to protect the area, to protect the health and safety of peoplewho may visit the area and to protect access to the area.Submissions[132] Mr McNamara says that it is obvious from the Decision Report that no properanalysis was undertaken as required by s 11(2) of the FCA. He said that the analysisrequired by the FCA was of the type undertaken by Mr McArthur. He had looked ateach site and determined whether a restriction or prohibition was necessary for one ofthe purposes set out in s 11(2)(a). Mr McArthur had explicitly considered whether thebylaw was the most appropriate and proportionate way of addressing the perceivedproblems. A copy of the analysis carried out by Mr McArthur for the Wynen StreetCarpark site is attached by way of example. 43[133] Mr McNamara also referred to comments made at the second reading of theFreedom Camping Bill by the Minister of Conservation that:44Local authorities will be able to make bylaws, prohibiting or restrictingfreedom camping in a particular area, but only if such bylaws is the mostappropriate way of addressing those problems. Prohibitions or restrictionswill apply only to areas where problems have been caused by freedomcampers. Importantly, any prohibitions or restrictions must be in proportionto the problems identified, which will also alleviate the concern regardingblanket bans. This is a stronger pro-camping stance than currently existsunder some local authority bylaws.43 See Attachment below.44 (11 August 2011) 2056 NZPD at 20566.[134] The then Minister for the Environment45 also commented as follows:That "the Bill" addresses a growing problem. It is needed in order to protectpublic health, protect iconic spots, and protect New Zealand's "clean green"brand. It poses no threat to the responsible freedom camper.[135] Ms Rainey, for the Council, submitted that the councillors had a detailedknowledge of all areas in the Marlborough Council district in addition to thesubstantial amount of information from the submitters, and reports from residents andother constituents from all over the district. That led councillors to the conclusion thatin various areas across the district, risks such as fire protection to the east, the natureof roads in the non-urban areas and the problems with health and safety frominappropriate waste disposal, together with examples of difficulties caused byblocking access, were sufficient to enable the Council to conclude that the wholedistrict needed protection. It concluded that the most appropriate and proportionateway to manage that risk was to put a blanket default ban on freedom camping, thenisolate the sites that were appropriate and where the risks presented by responsiblecamping could be managed.[136] Ms Rainey argued that there were submitters from across the local authoritywhose comments could be extrapolated. For instance, in relation to the Awatere Roadarea (to the east of the district), a submission had been made that freedom campingbeside roads or off-road created a biosecurity risk for stock health and farm safety andthat dogs travelling with campers were harmful to sheet and cattle and camp cookerswere identified as a risk in dry seasons. The submitters said freedom camping shouldbe prohibited in an area of the Awatere Valley Road. Submitters also soughtprohibitions in other areas of the MDC jurisdiction. These included the MarlboroughSounds and Picton to the north/west, the urban areas in which camping had beenprohibited in the 2012 bylaws, the east along the Kaikōura coast and the inland areastoward Nelson.[137] Counsel for the MDC emphasised that Marlborough presented uniquedifficulties when it came to managing responsible camping. First, there was nocomprehensive database of all land and areas owned or controlled by the local45 (11 August 2011) 2056 NZPD at 20570.authority, therefore, there was no central repository of that type of information.Secondly, the Council was not resourced to undertake a comprehensive survey of allareas of the district. In addition, due to not only the flooding but other problems giventhe geography of the district and the remoteness of many of the areas, it faced morepressing problems. Those hazards were issues to be considered when assessingwhether and how to appropriately and proportionately respond to freedom camping.[138] In submissions, counsel for the MDC summarised the position the councillorsfaced when responding to the responsible camping risks:(a) In the Marlborough Sounds, the geography resulted in narrow windyroads with difficult access and flood-prone low-lying areas. Many ofthese roads had a prohibition on freedom camping.(b) The main road from Picton to Blenheim and down toward Kaikōurawas State Highway 1. This was under the authority of the New ZealandTransport Authority (NZTA), not the MDC.(c) Between Picton and Blenheim lay the Wairau Diversion, which hadsuffered severe flooding, leading to closure so the remedial works to becarried out. A temporary nearby site had been made available forresponsible camping.(d) The south coast (along which the State Highway 1 runs) was alsoflood-prone.(e) The eastern area which included the Awatere Valley had long, windyroads and much of the area was subject to a high risk of fire.(f) The urban areas – most already did not allow freedom camping outsidereserves.[139] These geographical and environmental features were compounded by:(a) The fact there was no central register of all local authority land due tothe nature of the previous borough and district council.(b) Very severe floods in 2020 that had compromised some sites and otherareas in the district.(c) There had been a substantial growth in demand for sites for freedomcamping.(d) There had been a rise in reports of problems with freedom campers,including waste. The fact that a vehicle was certified as having self-contained waste facilities did not mean they were necessarily operative.Other problems included blocking access to locals who were visitors tothe reserves, and campers using adjacent private property. In one case,a freedom camper had camped on a helipad used for emergencyhelicopter landings in a remote area.[140] Ms Rainey referred to an analysis of the submissions attached to counsel'ssubmissions which had been made. She pointed out that submitters came from variousparts of the district.[141] The approach suggested by counsel for the MDC is based on the premise thatit was not necessary for the local authority to undertake an analysis of each area or sitein its district such as that done by Mr McArthur. Ms Rainey submitted, given thenature and the diverse geography of the district, as well as the problems the MDC wasfacing, the Council had properly decided that a default bylaw was necessary for all ofthe s 11(2) purposes: to protect the area, to protect the health and safety of people whomay visit the area; and to protect access to the area. Therefore, the 2020 Bylaw wasthe most appropriate and proportionate way of addressing that perceived problem.[142] Counsel also submitted that the threshold for a Court interfering with a decisionof a democratically elected local authority is high and councils should be afforded awide discretion in complying with decision-making requirements, due to the politicalnature of their role and their accountability to their constituents. This meant theirdecisions should not readily be interfered with by the Court.Other cases[143] Cooper J in the New Zealand Motor Caravan Association Inc v Thames-Coromandel District Council (TCDC) reviewed the TCDC Freedom CampingBylaw.46[144] The NZMCA had challenged the validity of the TCDC Freedom CampingBylaw 2011. It also challenged the Council's Public Places Bylaw 2004 and ParkingControl Bylaw 2004 which predated the FCA. The Council had received erroneouslegal advice on the legality of leaving those 2004 Bylaws in place following thecoming into force of the FCA. The TCDC said they would not be enforced and wouldbe revoked as soon as possible following the special consultative procedure in theLGA.[145] In those circumstances, counsel for the TCDC said it would consent to ordersthat the bylaws be set aside.47 The TCDC proposed a solution to the litigation bywhich the Council would consent to an order that the bylaws not be enforced.48 Thatwas on the basis that such a solution would cause no practical difficulties since thathad been the policy decision adopted by the Council since the bylaw was made.49[146] The Court had reservations about making an order which would prevent theCouncil enforcing its bylaws which had been validly made,50 citing R v Commissionerof Police of the Metropolis, ex parte Blackburn.51 However, His Honour concludedthat bylaws were in a different category to criminal laws, particularly as the Councilitself was the lawmaker.52 Cooper J was satisfied on the evidence that it was theCouncil's intention that once the FCA was passed, the local authority would control46 New Zealand Motor Caravan Association Inc v Thames-Coromandel District Council [2014]NZHC 2016, [2014] NZAR 1217 ["NZMCA v TCDC"].47 At [59].48 At [60].49 At [60].50 At [61].51 R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118 (CA).52 NZMCA v TCDC, above n 46, at [62].freedom camping pursuant to the powers given by the Act. Therefore, he concludedthat a direction not to enforce the 2004 bylaws was appropriate as an interim solutionand made the order sought.53 His Honour noted that relief in applications for reviewwas discretionary and it was not necessary for him to quash a bylaw that would not beenforced.54[147] The TCDC had also made amendments to the FCA bylaw without followingthe special consultative procedure. It suggested parts of the bylaw be severed. Thatleft the balance of the bylaw, apart from the amendments, intact. This was the courseadopted.[148] Cooper J said the reasons justifying the protection of a specific area under s11(2) need not be unique to that area. In that case, an area and site analysis had beendone and presented in a tabular format. The table listed each of the sites and thepurpose for which it should be protected. Many of those purposes were in common.However, the Judge felt there had been a genuine attempt to consider each areaseparately.55 His Honour accepted that similar problems appeared to arise at differentlocations which was "inherent in the fact that freedom camping is the subject matterbeing controlled".56[149] Cooper J also found that a prohibition could extend into an adjacent urban areaif the identified problem attracting the prohibition or restriction at a particular location,such as a reserve or beachfront, might simply result in the problem migratingelsewhere in the vicinity.57[150] In addition, His Honour said the number of freedom camping sites and theirlocations was a policy consideration for the Council.58 This included the fact that theprohibition applied to many of the most sought-after destinations for freedom campingin the Council's district.5953 At [63].54 At [64].55 At [80].56 At [160].57 At [108].58 At [109].59 NZMCA v TCDC, above n 46, at [104].[151] Cooper J was satisfied that it was appropriate to prohibit camping by a blanketban in an urban area, and to protect areas of land where there may be "migration"effect from other areas.[152] In the TCDC case, the Court accepted the possibility that many of the problemsidentified by the Council in relation to sites could be addressed by "less intrusivemeans" such as enabling the Council to take enforcement action in response toparticular types of behaviour.60 However, the Judge said that the decision as to themethod of control was up to the Council, he said:[113] However, while the Council could prosecute under such provisions,they are essentially powers exercisable after the event and prosecutingindividuals would be inherently problematic in respect of a class of offenderwho by definition is peripatetic. Such provisions are of obviously less utilitythan the controls assumed by the Council under its Bylaw and the Council wasnot obliged to rely on them.[153] The Court in TCDC recognised that a margin of appreciation was to be allowedto a local authority in its decision-making. This has long been the approach taken bythe Courts. For instance in New Zealand Public Services Association Inc v NationalDistribution Union Inc,61 Hammond J was asked to review decisions of the HamiltonCity Council in the restructure of the delivery of Council services. In the course ofthat judgment His Honour noted that the Court needed to ensure it did not interferewith a council's decision by "assessing the council's homework".62 He declined tointerfere with the council's decisions and analysis of the merits.[154] In Minotaur,63 the Court of Appeal noted that there was a clear intention in Part6 of the LGA to give councils "a wide discretion in this field. ",64 and, further:[59] An assessment of all relevant facts and factors is required with duedeference to the breadth of the discretion. A punctilious approach musttherefore be avoided. Section 79(1)(b)(iv) of the LGA also reserves to theCouncil a discretion as to the nature and extent of any written record of thedecision under challenge. It may be, as here, that the record does not addressthe specific issue raised in the proceeding. There is no indication there thatthe situation of non-resident landlords was considered when consultation60 At [111].61 New Zealand Public Services Association Inc v National Distribution Union Inc CP52/96, HCKirikiriroa | Hamilton, 16 September 1996.62 At 19.63 Wellington City Council v Minotaur Custodians Ltd, above n 10.64 At [48].categories were formulated. That is to be expected. The Council cannot berequired to meticulously record reasons for its approach to procedural detailas if it were a court. As s 79(1)(b)(iv) implies, that would create too heavy aburden on a busy council with a finite budget.[155] More recently, in Hauraki Coromandel Climate Action Inc v ThamesCoromandel District Council,65 Palmer J reiterated that a Court will not interfere witha discretionary judgment of a council, unless it is irrational and made on a wrongprinciple. But he also noted there must be an evidential basis for the judgment. Inthat case, the High Court decided there was no evidence that the local authority hadmade any s 79 judgement at all.The approach[156] A local authority may use such method as it determines appropriate to delineaterelevant areas within its district for the purposes of the s11(2) analysis. Thedecisionmaker must then satisfy itself that the bylaw was necessary for the relevantpurposes and was the most appropriate and proportionate way of addressing theperceived problem of freedom camping in a relevant area.[157] This requires that the local authority undertake a risk analysis framed by thecriteria set out in s 11(2) of the FCA. A default prohibition or restriction on freedomcamping in areas in a district does not of itself offend against the provisions of ss 11and 12 of the FCA as long as there are sites or areas in which freedom camping ispermitted. However, the local authority must satisfy itself on the requirements of s11(2) in relation to each area.[158] The FCA contemplates that each area (however selected) must be the subjectof consideration. The description of the area may be general. For instance, thedescription of an urban area in which freedom camping is prohibited by reference tothe location of a speed sign for the urban speed limit has been held to be an appropriatemanner of defining an area for the purposes of the FCA.66 A definition of "urban area"65 Hauraki Coromandel Climate Action Inc v Thames Coromandel District Council [2020] NZHC3228, [2021] NZRMA 22 at [57](iv).66 NZMCA v TCDC, above n 46, at fn 1.by reference to a speed limit of no more than 70 kph was described as a "useful andintelligible way of describing 'urban area' for the purposes of the Bylaw".67[159] The statutory requirement is that the local authority must properly consider andsatisfy itself what was the appropriate and proportionate response for the purposes setout in s 11(2)(b) of the FCA, in order to determine that freedom camping should beprohibited or restricted in an area or site. It must consider the most appropriate andproportionate way of addressing a perceived problem in each area.[160] The risks may be in common with other areas, such as dangerous roads or dryconditions and there may be adjacent areas, which justify restriction or prohibition dueto a "migration" effect to nearby areas.[161] There was a substantial amount of information before the councillors as to theviews of residents of the district, about the effect of freedom camping generally. Therewas also considerable information about the issues encountered in specific areas in thedistrict. The councillors were also entitled to bring their own knowledge andexperience to bear on the decisions. There was also some site and area-specificanalysis. However it is not apparent that the issues in all areas of the district wereconsidered as required.[162] Councillor Oddie explains how the Subcommittee members were grapplingwith how to protect the areas that needed protection on a site or area specific basis but,concluded that a general district prohibition was the better approach. I am unable todiscern any "genuine attempt" to define areas in the district or to apply the s 11(2)criteria to those areas. This is likely because the decision of the Subcommittee toadopt the different approach came at the end of the process and the justification waswritten later to support the decision already made. It is not the lack of a written areaanalysis such as those set out in the McArthur report that is the difficulty. If it wereapparent from the decision papers including the submissions relied upon that ananalysis had been carried out that would have been sufficient although well short ofbest practice decision making. However, that material is not apparent in the decisionpapers and counsel for MDC were unable to point to the required analysis.67 At [20].[163] This case differs from the TCDC case as in that case the local authority hadundertaken the s 11(2) analysis using a specific site and area analysis, similar to thatused in the McArthur report. The Judge considered the material showed a "genuineattempt" to consider each area. There was also not a default district prohibition in theTCDC case.[164] As I have noted, nothing requires the Council to record its deliberations onthose issues in s 11(2) in a particular format. However, on the material I have, it is notapparent, nor can it be inferred, that the Council did turn its mind to how to delineatethe areas in the district nor was there a "genuine attempt" at the analysis it was requiredto carry out.[165] I accept that the decision of the Council as to the regulation of responsiblecamping contains a high policy content. Mr McNamara said that was not a "socialpolicy" issue such as occurred in the brothel cases, which I detail below.68 I disagree.It is a social issue despite it being a different type of issue to that engaged in the brothelbylaw cases. It is entitled to a wide margin in exercising its decision-making discretionon the merits.[166] The Council was entitled to take into account the unique features of thedifficulties and problems associated with areas such as flooding risk and the problemsassociated with Covid at the time of its consideration. The constraints that it wasoperating under are also relevant to the extent of its investigation.[167] However, as is apparent, I am not satisfied that all the analysis of the areas inthe MDC district has been carried out as required of s 11(2) of the FCA.[168] The second cause of action is made out.68 See below at [178]–[181].Third cause of action[169] The third cause of action is based on unreasonableness. The applicant says the2020 Bylaw is unreasonable because they have the effect of prohibiting freedomcamping throughout the district. This prohibition offends against s 12 of the FCA.69[170] Section 17 of the Bylaws Act states:17 Part of bylaw only may be deemed invalidIf any bylaw contains any provisions which are invalid because they are ultravires of the local authority, or repugnant to the laws of New Zealand, orunreasonable, or for any other cause whatever, the bylaw shall be invalid tothe extent of those provisions and any others which cannot be severedtherefrom.Lack of legal sites[171] Mr McNamara for the NZMCA, submitted that on its own terms the 2020Bylaw was disproportionate due to an effective prohibition on freedom campingcontrary to s 12 of the FCA and unreasonable as a disproportionate response to theperceived problem. I have dealt with that issue in general terms under the secondcause of action.[172] In argument under this head, Mr McNamara focused on an argument that thecombination of the statutory requirements of Reserves Act and the need to getResource Management Act 1991 (RMA) consent for some sites to allow freedomcamping meant that it was not lawful to camp on any of the sites on which responsiblecamping had been permitted in the 2020 bylaw. In addition, the Wairau Diversion hasbeen closed due to flooding, although a temporary site (without RMA consent) in thatgeneral area has been allocated for use instead.[173] Counsel for the MDC indicated that the Council had been given delegatedauthority under the Reserves Act to grant permission for responsible camping to takeplace on the relevant reserves. It intended to do so in mid-November 2020. Counselsaid it was an oversight that this permission was not granted at the same time the MDCapproved the bylaws in December 2019.69 Set out above at [25][174] The MDC agreed that five of the permitted sites require RMA consents to allowresponsible camping. It says it could not provide an estimate as to when resourcemanagement consenting process would be finished but it has applied for the consents.[175] The consent applications must be notified and will be heard by independentcommissioners. Any consent granted will be subject to possible appeals to theEnvironment Court. The outcome of the RMA process is uncertain as is the timerequired. In the meantime, the MDC has indicated, given the applications are in thepipeline, it will not be enforcing RMA compliance at the sites. It will allowresponsible campers to camp on those sites, pending completion of the resourceconsent process.[176] If the consents are not ultimately granted, it will mean that some of the sitesidentified for responsible camping will not be available. These are: the WairauDiversion, the Taylor Dam Reserve, the Renwick Domain Park, Wynen Street Carparkand the Elterwater sites. This means four of the five designated responsible campingsites will not be consented for responsible camping.[177] Ms Craighead, in her affidavit, said that the reason why resource managementconsents were required at the camping sites was because the proposed MarlboroughEnvironment Plan (the proposed plan) had changed the earlier legal position. Despitethis, council compliance staff were not taking any enforcement action under the RMA,given that preparation of resource consents was well in hand and some had beenlodged. Ms Craighead said that the difficulty had arisen by way of a sidewind whensubmissions were made on the proposed plan in relation to activities within the roadand rail corridors. These submissions were largely relating to discharges to air andland and water, excavation and land disturbance. However, the changes have alsocaptured all district and land uses as well, despite the fact that the submissions on therule were unrelated to freedom camping. She said that by default freedom camping asan activity in road and rail corridors had become a discretionary activity requiringconsent.[178] Counsel both referred to Conley v Hamilton City Council70 in relation to theapplication of s 17 of the Bylaws Act. That was a decision concerning the validity ofbylaws controlling the locations of brothels in Hamilton. The bylaws were made underthe Prostitution Law Reform Act 2003. The High Court had declined to strike downthe relevant bylaws. The Court of Appeal upheld that decision.[179] In that decision Hammond J, for the Court of Appeal, summarised non-exclusive grounds on which a bylaw might be held to be invalid. He said:[45] The more explicit grounds are:• First, a bylaw may be invalid on the basis of the simple propositionthat the authority purporting to make it may not act outside its powers,which as Sir William Wade put it, "might fitly be called the centralprinciple of administrative law" (Wade and Forsythe AdministrativeLaw (9ed 2004) at 35);• Secondly, a bylaw will be regarded as uncertain if the persons requiredto obey it cannot ascertain what is required of them;• Thirdly, a bylaw will be invalid if, even though it is in a strict senseintra vires in respect of its own particular statute, it contravenesanother statute or purports to make something unlawful which thegeneral law says is lawful; and• Fourthly, a bylaw will be regarded as unreasonable if it leads tomanifest arbitrariness, injustice, or partiality. A well-known exampleof the application of this fourth principle is Re City of Montreal vArcade Amusements Inc [1985] 1 SCR 368 holding invalid a bylawprohibiting minors from entering amusement halls or usingamusement machines. The Supreme Court of Canada said that it wasupholding "the rule of administrative law that the power to make by-laws does not include a power to enact discriminatory provisions" (at403) and that this is a "principle of fundamental freedom" (at 413).[180] His Honour went on, after some discussion of "unreasonableness" to concludethat a "proportionality analysis" to establish when a bylaw was unreasonable might beapplied. However, even where that was resorted to, there was still a difficult questionof "the intensity of the review to be employed".71[181] The Court of Appeal in Conley emphasised the evidence as to the effect of theexclusion from zones other than those permitted was poor and quite equivocal.70 Conley v Hamilton City Council [2007] NZCA 543, [2008] 1 NZLR 789.71 Conley v Hamilton City Council, above n 70, at [56].Hammond J contrasted that case with earlier cases on brothel bylaws where theevidence was clear that the ability to carry out the activity would have a severe impactif prohibited in various zones. Finally, His Honour expressed caution about secondguessing a decision of the local authority. He said:[75] The fourth point is that, even if this were a close run case, in our viewwhereas here the choices being made are distinctly ones of social policy(considered, we note, in the absence of any real Bill of Rights concerns), acourt should be very slow to intervene, or adopt a high intensity of review. Alarge margin of appreciation should apply. Parliament entrusted the locationof brothels to local authorities, which are elected bodies, and Parliament hasitself decided to maintain a measure of ongoing review of prostitution.[76] Fifthly, nothing said by the Court in this case will necessarily dictatethe outcome of other cases. The whole point of the Parliamentary delegationis that the appropriate requirements for particular locales may very well vary.[182] In this case, Mr McNamara, for NZMCA, argued that in fact what hashappened here is that "in effect" there are now no lawful responsible camping sitesavailable. He said this is because of the default blanket prohibition, together with thefact that four of the five sites require resource consent before they can lawfully be usedand the remaining site requires Reserve Act permission (as do two other sites whichalso require resource consent). Without any lawful sites available, he said the bylawwas made in contravention of s 12 of the FCA, which prevented local authorities frommaking bylaws that had the effect of prohibiting freedom camping in all areas of thedistrict.[183] In TCDC, Cooper J was prepared to make an interim order allowing theCouncil time to revoke its Parking in a Public Place Bylaws. These bylaws had theeffect of prohibiting all freedom parking in the Thames Coromandel local authorityarea. However he pointed out the bylaws could be revoked by the Council thereforebylaws were unlike criminal laws where such a policy of nonenforcement would beunlawful.[184] In this case, the Council indicated that it intended to issue the Reserves Actpermissions in mid-November. It has the delegated authority to grant those.[185] I can see no difficulty with the MDC indication that it will not enforcecompliance pending the granting of the permissions, which it has indicated it will doin the short term.[186] However the MDC acknowledged that the resource management consentswere more problematic. The Council finds itself in a difficult position in that regardbecause a different local authority planning process has led to the position that, forreasons other than the review of responsible camping, requirements for resourceconsent on the relevant sites have been inadvertently triggered. The Council cannotguarantee the outcome of the resource consent applications. However, it is able tomanage its enforcement processes so that the practical effect is that compliance willnot be enforced at the relevant sites, pending the obtaining of consents.[187] In the circumstances, given the background to the issue with the RMA and theinadvertent non-compliance, I do not consider that the combination of the ReservesAct and the RMA, together with the default prohibition on freedom camping, wouldhave had the effect of prohibiting freedom camping, contrary to s 12 of the FCA. Forall practical purposes responsible camping would have been permitted at the sitesindicated but for my findings on the second cause of action. It is up to the MDC todetermine the location and nature of the sites on which it will permit, prohibit andrestrict freedom camping. It has indicated it will ensure access is maintained to therelevant sites. That is sufficient.[188] Nevertheless the third cause of action succeeds in that the bylaw is invalidunder s 17 due to my findings on the second cause of action that the decision to adoptthe 2020 bylaw was in contravention of the requirements of s 11 of the FCA.Findings[189] I have concluded that the MDC did not exercise its discretion as to whether toreconsult on the proposals for the 2020 Bylaw after it removed the permissive defaultclause (6.3 of the 2012 Bylaw) and inserted a default blanket prohibition on freedomcamping across the district. This was a significant change to the Statement of Proposalthat had been consulted on. The local authority has a wide discretion about how andwho it consults. However, it did not turn its mind to the issue of whether it shouldreconsult after the change. It should have done so. The first cause of action succeeds.[190] In addition, on the evidence available, I am unable to conclude that the MDCsatisfied itself that cl 5 of the 2020 Bylaws (the blanket default prohibition clause) wasthe most appropriate and proportionate way of addressing the perceived freedomcamping problem in all relevant local authority areas in the district, as required bys 11(2) of the FCA. However, it did satisfy itself, as it was required to, in relation tothe sites and areas (including urban areas and roads) that were referred to in the variousreports, including the McArthur Report, the Staff Site Reports and the sites and areasreferred to in the 2012 Bylaws. I am not satisfied that the MDC had considered allareas of the district, as it was required to do in terms of s 11(2) of the FCA. Therefore,the second cause of action is made out.[191] Given my findings on the second cause of action, it follows that the third causeof action succeeds.Relief[192] In view of those findings, I now turn to the relief.[193] The NZMCA took no issue with a requirement that all vehicles used forresponsible camping were required to have self-contained waste facilities. Nor did itsuggest that it was unlawful that the Council reserve to itself the right to restrict orprohibit access on a limited-term site by site basis for express reasons such as risks offire, flooding, health and safety, use for an event approved by the Council, or the needto better protect public access or for maintenance. Although it did question whetherthe bylaw was sufficiently specific as to the limited-term nature of such restrictions orprohibitions.[194] In addition, the applicant supported an area or site by site analysismethodology. The NZMCA had made submissions to the MDC that there should bemore sites available, particularly in urban areas. However, the location and numberof sites, are matters for the Council. The MDC had before it, when it made the siteand area decisions, the NZMCA submissions. I am satisfied that the MDC hadproperly consulted on that aspect of its decision.[195] Both counsel referred to the provisions of the Bylaws Act 2010 which allowthe Court, instead of quashing the whole decision, to sever the offending part of thebylaw or amend it in such a manner as it thinks necessary to render the provisionsvalid.72[196] As counsel agreed, the 2020 Bylaw has been drafted in such a manner that itdid not allow severance of the offending default provision without amendments to thebylaw as a whole. However, even if it were possible to make those amendments, theresultant bylaw would not reflect the intention of the MDC. The Council may havedecided that other areas and sites would be the subject of prohibitions or restrictionson responsible camping if it had not decided to use the default blanket prohibitionmechanism.[197] Therefore, I do not consider it is appropriate to use the provisions of the BylawsAct 1910 to amend the 2020 Bylaw.[198] Mr McNamara, for the NZMCA, suggested that if the bylaw was quashed orset aside, the Council could use other bylaws, such as the Parking Bylaws, to regulateany difficulties with freedom parking. However, in my view, that is an inappropriateuse of bylaws, which have been promulgated for the purposes other than the regulationof freedom camping.[199] Ms Besier submitted that if the Court concluded that the 2020 Bylaws wereunlawful in the public law sense, consideration should be given to applying s 17 of theJudicial Review Procedure Act, which allows the Court to make a direction in additionto, or instead of granting relief, where the Court is satisfied that an applicant is entitledto relief.73 That section provides:17 Court may direct reconsideration of matter to which statutorypower of decision relate72 Bylaws Act 1910, ss 17 and 12(5).73 Judicial Review Procedure Act 2016, ss 17(1) and (2).(1) This section applies if the court is satisfied that an applicant who hasfiled an application for judicial review in relation to the exercise,refusal to exercise, or purported exercise of a statutory power ofdecision is entitled to relief under section 16.(2) The court may make a direction under subsection (3) in addition to orinstead of granting any relief under section 16.(3) The court may direct any person whose act or omission is the subjectmatter of the application to reconsider and determine, either generallyor in respect of any specified matters, the whole or any part of anymatter to which the application relates.(4) In giving a direction to any person under subsection (3), the courtmust—(a) advise the person of the reasons for the direction; and(b) give the person such directions as it thinks just as to thereconsideration or otherwise of the whole or any part of thematter that is referred back for reconsideration.(5) If the court makes a direction under subsection (3), it may make aninterim order under section 15, and that section applies so far as it isapplicable and with all necessary modifications.(6) If a matter is referred back to any person under subsection (3),—(a) the act or omission that is to be reconsidered continues to haveeffect (subject to any interim order) unless and until it isrevoked or amended by that person:(b) the person has jurisdiction to reconsider and determine thematter in accordance with the court's directions despiteanything in any other enactment:(c) the person must have regard to—(i) the court's reasons for giving the direction; and(ii) the court's directions.[200] Those provisions were recently applied in Waimea Nurseries Ltd v Director-General for Primary Industries.74 The respondent (the Director General for PrimaryIndustries) had determined that tree stock had been imported in contravention ofbiosecurity standards and had directed that the stock and the trees propagated from itsince 2012, be destroyed. The Court found that the decision and direction was74 Waimea Nurseries Ltd v Director-General for Primary Industries [2018] NZHC 2183, [2019] 2NZLR 107.unlawful in public law terms and could not stand.75 However, there were other optionsavailable to the Ministry to deal with the tree stock and trees propagated in light of thebiosecurity contravention. His Honour determined the Ministry should be given theopportunity to consider these options, although their use might lead to the sameoutcome including the destruction of the trees.76 In the circumstances, His Honourmade interim orders preserving the position while the decision-maker was given theopportunity to reconsider. That reconsideration was likely to result in a furtherexercise of power by the decision-maker.77[201] His Honour made orders preserving the position for a set period of timeobserving that the decisionmaker was free to apply to the Court for an extension oftime. The provisions of the interim orders had agreed between the parties, but theCourt indicated that it would have made orders to the same effect.[202] Cooke J recognised that strong reasons were required to decline relief or toallow relief as an alternative to setting aside a decision. However, he noted there hadbeen a degree of debate in recent years relating to the scope of discretion in relation torelief and that a more nuanced approach such as that recognised in Rees v Firth maybe necessary in the generality of cases.78 He concluded that a nuanced approach wasto be preferred in relation to the case before him.79[203] I take the same view in this case. The MDC has commenced, of its ownvolition, a process of review of the FCA bylaw. That process has recently commencedand I consider it appropriate that orders be made for a period to enable the MDC tocomplete this review. It has indicated the review timetable should lead to decisionsby the Council in April 2022.[204] In the circumstances, I propose granting relief by setting aside the decisionleading to the adoption of the 2020 Bylaws. That has the effect of setting aside the2020 Bylaws and preventing MDC from taking action under them. However, at the75 At [46] and [57].76 At [58].77 Waimea Nurseries v Director General for Primary Industries, above n 74 at [86].78 At [88]; citing Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48].79 Waimea Nurseries v Director General for Primary Industries, above n 74, at [89].same time I propose making interim orders under s 17(3) to effectively preserve theposition as it was under the 2012 Bylaw updated as to sites in terms of those listed inthe 2020 bylaw as permitted sites.[205] I do not propose finalising the form of relief and interim orders before I hearfrom counsel. A minute will be issued with directions as to further submissions in thatregard. To enable the form of the final orders to be finalised this judgment will nothave effect until 24 December 2021.80Costs[206] There appears no reason why the costs should not be awarded on a 2B basis infavour of the applicant. If agreement cannot be reached on costs, any application,together with supporting submissions, should be filed and served five days after themaking of the interim orders and any reply, within a further five days._____________________Grice JCounsel/Solicitors:Simpson Grierson, AucklandTasman Law Ltd, Nelson80 Rule 11.5 of the High Court Rules 2016.ATTACHMENT