NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v MARLBOROUGH DISTRICT COUNCIL [2021] NZHC 3614

NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v MARLBOROUGH DISTRICTCOUNCIL [2021] NZHC 3614 [22 December 2021]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECIV-2021-406-000015[2021] NZHC 3614BETWEEN NEW ZEALAND MOTOR CARAVANASSOCIATION INCORPORATEDApplicantAND MARLBOROUGH DISTRICT COUNCILRespondentHearing: 22 December 2021Appearances: P McNamara and O Rego for the ApplicantA C Besier and G A Rainey for the RespondentJudgment: 22 December 2021JUDGMENT (No. 2) OF GRICE J(Relief)[1] In my interim judgment of 17 December 2021 I indicated that the applicanthad succeeded in its application for judicial review on all three causes of action.1 Thedefault area wide ban on freedom (referred to as responsible) camping was adopted asclause 5 of the 2020 MDC Responsible Camping Control Bylaw as a result of a flaweddecision making process. The Marlborough District Council (MDC) is in the processof reconsideration of its bylaws under the Freedom Camping Act 2011 (FCA).2[2] I did not finalise the substantive judgment but left open the matter of relief inorder to hear further from counsel. I canvassed options for relief including severance1 New Zealand Motor Caravan Association Inc v Marlborough District Council [2021] NZHC 3157Substantive Judgment at [189] – [191].2 The terms "Responsible Camping" and "Freedom Camping" are used interchangeably. SeeSubstantive Judgment at [5].of the offending clause or the amendment of the bylaw as well orders under s 17(3) ofthe Judicial Review Procedure Act 2016, which allows the Court to directreconsideration by the decision-maker. The act or omission that is to be reconsideredcontinues to have effect, subject to the terms of any interim order unless it is revokedor amended. In this case it would have been the 2020 bylaws.3[3] The applicant submitted that it was entitled to relief. It said the effect ofleaving the decision in place while it was reconsidered would deprive it of that relief.Both counsel agreed that in the circumstances interim orders preserving the positionwere not appropriate in this case. I accept that submission in view of the fact that theproposed interim orders would not have the effect of preserving the position of theapplicant.4[4] The applicant would prefer that the bylaws be set aside in their entirety.However it also noted the option of severance of the relevant clause under the BylawAct was available in the circumstances. It also submitted that in the absence of anyspecific resolution of the MDC revoking the 2012 bylaws, those bylaws remainedextant should the 2020 bylaws be set aside.[5] MDC says while there was no specific resolution revoking the 2012 bylaws,that was the intention of MDC when it enacted the 2020 bylaws. Ms Besier submittedit was not necessary to have a specific resolution revoking the previous bylaws. TheMDC points out that many of the sites listed for freedom camping under the 2012bylaws are no longer available due to flood damage and other issues. In addition, ifthe 2012 bylaws were in force, the effect would be that responsible camping would beallowed throughout the district, rather than restricted to self-contained waste vehicles.[6] Mr McNamara also pointed out there were offences for which infringementnotices could be issued under the FCA. These were introduced in 20175. Theyincluded offences such as for the depositing of waste and interfering or damaging the3 S.17(6)(a) of the JRP Act 20164 As is required under s17(5) of the JRP Act by reference to s.15.5area while freedom camping.6 However, these require enforcement which accordingto Ms Besier presents some challenges for the MDC.[7] Both parties indicated that it was open to the Court to sever the offending bylawclause. That is the districtwide ban on responsible camping (cl 5).7 Counsel indicatedthat despite earlier reservations I noted in the judgment, their view was that severancewas available and would be consistent with the provisions of the Bylaws Act 1910.8[8] From the MDC's point of view while its preferred option would be for thewhole of the 2020 bylaw to remain in force pending the reconsideration. If that werenot possible it would prefer the balance of the bylaw to remain with the defaultprovision in cl 5 severed, rather than some other option. It indicated that this wouldachieve one of the primary objectives of the Council in adopting the 2020 bylaw: thegeneral restriction on responsible camping throughout the district requiring thatself-contained waste vehicles must be used.[9] Section 17 of the Bylaws Act states:Part of bylaw only may be deemed invalidIf any bylaw contains any provisions which are invalid because they areultra vires of the local authority, or repugnant to the laws ofNew Zealand, or unreasonable, or for any other cause whatever, thebylaw shall be invalid to the extent of those provisions and any otherswhich cannot be severed therefrom.[10] Having heard from counsel I am persuaded that the Bylaws Act enables theseverance of the offending default provision in this case. As I have noted the Councilhas clarified that one of its primary intentions was the restriction on any responsiblecamping in the district to self-contained waste vehicles. Such a position is consistentwith the evidence of the Council and its final Decisions Report.9 The failures in the6 S.20 of the Freedom Camping Act.7 Marlborough District Council Freedom Camping Control Bylaw 2020, cl 5.8 Substantive Judgment, above n 1, at [196].9 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)process which I found established related to the area wide default ban rather than theremainder of the bylaw.10[11] In addition, the severance would not affect the listed sites on whichrestricted/permitted responsible camping was expressly allowed. Unlike the defaultban there had been the appropriate consultation and analysis as required by the FCAin relation to these sites. Ms Besier indicated that such severance supported the publicinterest in retaining the balance of the bylaw and ensured there was regulation forresponsible camping in place.[12] Ms Besier for the MDC submitted that health and safety considerations wereimportant factors in the MDC's decision-making. It was these considerations that hadled to the requirement of self-contained waste for all vehicles of which were entitledto camp under the FCA bylaw in the district. In addition, the retention of the 2020bylaw enables the council to close sites where necessary for health and safety reasons.An important feature of the 2020 bylaw was that it allowed the council officers tomove quickly in the case of flood, fire or other impending danger to ensure the safetyof campers. Again, this provision was not the result of a flawed decision-makingprocess.[13] The balance of the bylaw apart from cl 5 had been consulted upon and was notsubject to the failures in decision making identified in relation to the default banclause.11[14] I accept those submissions. I am satisfied it is appropriate to sever theoffending provision from the 2020 bylaw and leave the remainder of the 2020 bylawin force, pursuant to the provisions of s 17 of the Bylaws Act for the reasons indicatedby counsel and set out above. My earlier reservations were that severance alone wouldnot be effective and amending the bylaw would not reflect the intentions of the MDC.However I am persuaded severance is appropriate in view of the fact that the bylawhad a number of objectives which would be achieved through the severance of clause5 (the area wide default ban) and the retention of the balance of the bylaw.10 Substantive Judgment, above n 1, at [193]-[194].11 Substantive Judgment above, at n 1 at[15] This is not a case such as Potts v Invercargill City Council12 where theunderlying bylaw would remain invalid despite severance. Nor does the bylaw requirerewriting due to an inextricable interconnectedness of the invalid clause from the restof the bylaw.13 The provisions in the remainder of the bylaw were the subject of properconsultation and appropriate consideration under the FCA. In view of the Council'sobjectives for the bylaw, there is no reason that cl 5 cannot be severed from theoffending bylaw, as contemplated by section 17.[16] Ms Besier for the MDC indicated that there may be some other regulatoryproblems such as Reserves Act 1977 permissions and resource management issues inrelation to responsible camping on various roads and sites throughout the district.However, these are matters that are regularly dealt with by local authorities where anumber of regulatory provisions apply to the same areas or sites of land. That is amatter for the Council.Orders[17] For the reasons given in the substantive judgment, cl 5 of the 2020 Bylaw isinvalid and is set aside or severed from the other provisions in the Bylaw. Theremainder of the bylaw remains in force.[18] The final relief is granted by: 14(a) Setting aside the decision leading to the adoption of the 2020 Bylawinsofar as it relates to the adoption of cl 5.(b) Setting aside as invalid, cl 5 of the 2020 Bylaw. The remainder of the2020 Bylaw remains valid and enforceable.12 Potts v Invercargill City Council [1985] 1 NZLR 60913 Duffy v Evans [1981] 1 WLR 1522 at 1524.14 Substantive Judgment at [204] and [205].[19] In view of those orders it is not necessary to direct a reconsideration of thedecision or other relief. For completeness, and as noted in the substantive judgment,the MDC has commenced, of its own volition, a review of the FCA bylaw and willhave the benefit of the substantive judgment in that process.Costs[20] Counsel sought an extension of time for the filing of submissions on costsalthough indicated it was likely that costs would be agreed. In the application for coststogether with supporting submissions should be filed and served on or before4 February 2022. Any reply should be filed within a further five days._____________________Grice JCounsel/Solicitors:Simpson Grierson, AucklandTasman Law Ltd, Nelson