GWYNN v NAPIER CITY COUNCIL [2018] NZHC 1943

GWYNN v NAPIER CITY COUNCIL [2018] NZHC 1943 [1 August 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2018-441-00001[2018] NZHC 1943UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF the Shop Trading Hours Act 1990BETWEEN ROBIN GWYNNApplicantAND NAPIER CITY COUNCILRespondentHearing: 9 July 2018Counsel: M J E Williams for applicantM B Lawson for respondentJudgment: 1 August 2018RESERVED JUDGMENT OF DOBSON JContentsIntroduction [1]The legislative context [5]The SCP [14]The Council's process [18]Grounds for judicial review [26]Intensity of review [30]First ground: inadequate consultation process [39]Second ground: failure to consider a mandatory relevant factor [66]Third ground: irrationality [77]Fourth ground: taking into account an irrelevant consideration [83]Discretion on relief [86]Result [91]Costs [92]Introduction[1] This application for judicial review challenges the adequacy of the processadopted by the respondent (the Council) in considering whether it would promulgatea policy about Easter Sunday trading by retailers within its territorial area. Such apolicy would be an exception to the default position under the Shop Trading HoursAct 1990 (STHA) which, subject to certain exceptions, generally prohibits EasterSunday trading.[2] The applicant (Dr Gwynn) is a retired university professor, a former NapierCity councillor and a committed Christian closely connected to the Anglican Churchin Napier. Acting in his personal capacity, he opposed the adoption of a policy thatwould permit trading on Easter Sunday. At the time, he objected to the consultationprocess on the basis that it afforded an inadequate opportunity for those affected by,or having an interest in, such a decision to participate.[3] After the Council resolved in February 2017 to adopt a policy permittingtrading on Easter Sunday, Dr Gwynn promoted a petition calling on the Council toreconsider the issue after affording fuller opportunities for submissions from interestedparties. When the petition was rejected by the Council, he commenced this applicationfor judicial review in January 2018.[4] Before considering the grounds for judicial review, it is appropriate to explainthe legislative context in which the Council came to consider the issue and make itsdecision on the relevant policy. It is also appropriate to review the evidence on theprocess adopted by the Council leading to the decision under challenge.The legislative context[5] Dr Gwynn treats the position prior to Saturday trading legislation in 1980 asaffording all New Zealanders "over a hundred common break days in the year". Oncethe prohibition on trading on Sundays was removed in 1990, New Zealanders wereleft with "just three and a half common break days in the year", which Dr Gwynnargued is far fewer than in most western countries.[6] Parliament has made numerous attempts to rationalise various forms ofexemption from the prohibition on trading on Easter Sunday. Hansard records DeniseRoche as describing the Shop Trading Hours Amendment Bill 2015 as "about the tenthbill on Easter Sunday trading that has come before the House since 1996".1[7] The fresh initiative in the 2015 Bill was to pass the power of decision-makingabout Easter Sunday trading from Parliament as a national issue to local authorities asan issue to be resolved within their own communities. The Bill retained the existingprohibition on trading on Christmas Day, Good Friday, Easter Sunday and ANZACDay until 1.00 pm, subject to the prospect that local authorities could decide to permittrading on Easter Sunday within all or defined parts of their territory.2[8] The Bill as introduced provided a power for local authorities to make bylawsto permit shops to open on Easter Sunday. The Bill was referred to the CommerceSelect Committee, but was reported back to the House without a recommendation onwhether it should be passed or not because votes on the Select Committee were tied.3[9] It is apparent from the Parliamentary materials, including the report of theSelect Committee, that local authorities were generally less than enthusiastic abouthaving the decision-making power on the vexed issue of Sunday trading devolved tothem by Parliament. In particular, widespread concern was expressed at the cost andlegal risk of promoting bylaws. To address that risk, National Party members on theSelect Committee recommended that the power to make bylaws to permit EasterSunday trading be substituted with a power for territorial authorities to have a localpolicy on Easter Sunday shop trading. The perceived advantage of providing for localpolicies rather than making bylaws was apparent flexibility and reduction in the legalrisk for the local authorities involved.[10] This recommendation was adopted in the Bill as eventually passed,4 so that theShop Trading Hours Amendment Act 2016 (the 2016 Amendment Act) introduced a1 (28 June 2016) 715 NZPD 12203.2 Shop Trading Hours Amendment Bill 2015 (81-1).3 Shop Trading Hours Amendment Bill (81-1) (Select Committee report) at 2.4 Shop Trading Hours Amendment Bill 2016 (81-2).new Part 2 into the STHA dealing with trading on Easter Sunday. The new Part 2included:5A Territorial authority may have local Easter Sunday shop tradingpolicy(1) A territorial authority may have a local Easter Sunday shop tradingpolicy to permit shops to open on Easter Sunday in an areacomprising—(a) the whole of its district; or(b) any part or parts of its district.(2) A local Easter Sunday shop trading policy under subsection (1) maynot—(a) permit shops to open only for some purposes; or(b) permit only some types of shops in the area to open; or(c) specify times at which shops may or may not open; or(d) include any other conditions as to the circumstances in whichshops in the area may open.[11] Section 5B required any territorial authority to use the special consultativeprocedure (SCP) – defined in the Local Government Act 2002 (LGA) – in decidingwhether to adopt a local Easter Sunday shop trading policy (or to amend or revokesuch a policy). Section 5C required any territorial authority adopting a local EasterSunday shop trading policy to thereafter review it no later than five years after itsadoption.[12] The 2016 Amendment Act also introduced a separate sub-part, the provisionsof which would render unenforceable any contractual obligation requiring anemployee to work on Easter Sunday.5 These provisions also confirmed employees'rights to refuse to work on Easter Sunday and obliged employers to give eight weeks'written notice of the employer's request for the employee to work on Easter Sunday.They also prohibited employers from treating any employee adversely because theemployee has refused to work on Easter Sunday.5 These became ss 5F-5L of the STHA.[13] The 2016 Amendment Act came into effect from 30 August 2016. In mid-October 2016, Local Government New Zealand issued a briefing note to localauthorities reviewing the policy options available to local authorities on Easter Sundaytrading, and suggesting something of a template for the approach that might be takento decide on such a policy. The briefing note adverted to advice on timing that hadbeen provided by the Ministry of Business, Innovation and Employment (MBIE),which warned that any local policy to allow shop trading on Easter Sunday in 2017would need to be adopted by Friday, 17 February 2017 to give employers the eightweek period required to notify employees that opening was to occur, and of their rightto refuse to work.The SCP[14] Part 6 of the LGA contains provisions that apply to local authorities' planning,decision-making and accountability. It sets out procedures governing decision-makingby local authorities and the requirements imposed on their decision-making processes.These include a requirement that local authorities must give consideration to the viewsand preferences of persons likely to be affected by, or have an interest in, the matterto which the decision relates.6 Sections 82 to 83A, 86 and 87 of the LGA provideprinciples of consultation and procedures to apply in conducting consultation.[15] The SCP is provided for in s 83 of the LGA, as follows: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:6 LGA, s 78(1).(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 (orNew Zealand sign language) interaction between the personand the 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.(2) For the purpose of, but without limiting, subsection (1)(d), a localauthority may allow any person to present his or her views to the localauthority by way of audio link or audiovisual link.(3) This section does not prevent a local authority from requesting orconsidering, before making a decision, comment or advice from anofficer of the local authority or any other person in respect of theproposal or any views on the proposal, or both.[16] Section 83 is preceded by a number of other provisions governing decision-making and consultation by local authorities. The parties are at odds over theapplication of these other provisions on consultation when a local authority isundertaking an SCP. Accordingly, relatively lengthy extracts from these provisionsbecome relevant to arguments in the judicial review. The content and context of thesestatutory provisions is reflected in the following:76 Decision-making(1) Every decision made by a local authority must be made in accordancewith such of the provisions of sections 77, 78, 80, 81, and 82 as areapplicable.(2) Subsection (1) is subject, in relation to compliance with sections 77and 78, to the judgments made by the local authority under section 79.(3) A local authority—(a) must ensure that, subject to subsection (2), its decision-making processes promote compliance with subsection (1);and(b) in the case of a significant decision, must ensure, before thedecision is made, that subsection (1) has been appropriatelyobserved.(4) For the avoidance of doubt, it is declared that, subject tosubsection (2), subsection (1) applies to every decision made by or onbehalf of a local authority, including a decision not to take any action.(5) Where a local authority is authorised or required to make a decisionin the exercise of any power, authority, or jurisdiction given to it bythis Act or any other enactment or by any bylaws, the provisions ofsubsections (1) to (4) and the provisions applied by those subsections,unless inconsistent with specific requirements of the Act, enactment,or bylaws under which the decision is to be made, apply in relation tothe making of the decision.(6) This section and the sections applied by this section do not limit anyduty or obligation imposed on a local authority by any otherenactment.77 Requirements in relation to decisions(1) A local authority must, in the course of the decision-makingprocess,—(a) seek to identify all reasonably practicable options for theachievement of the objective of a decision; and(b) assess the options in terms of their advantages anddisadvantages; and(c) if any of the options identified under paragraph (a) involves asignificant decision in relation to land or a body of water, takeinto account the relationship of Māori and their culture andtraditions with their ancestral land, water, sites, waahi tapu,valued flora and fauna, and other taonga.(2) This section is subject to section 79.78 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 79.79 Compliance with procedures in relation to decisions(1) It is the responsibility of a local authority to make, in its discretion,judgments—(a) about how to achieve compliance with sections 77 and 78 thatis largely in proportion to the significance of the mattersaffected by the decision as determined in accordance with thepolicy under section 76AA; and(b) about, in particular,—(i) the extent to which different options are to beidentified and assessed; and(ii) the degree to which benefits and costs are to bequantified; and(iii) the extent and detail of the information to beconsidered; and(iv) the extent and nature of any written record to be keptof the manner in which it has complied with thosesections.(2) In making judgments under subsection (1), a local authority must haveregard to the significance of all relevant matters and, in addition, to—(a) the principles set out in section 14; and(b) the extent of the local authority's resources; and(c) the extent to which the nature of a decision, or thecircumstances in which a decision is taken, allow the localauthority scope and opportunity to consider a range of optionsor the views and preferences of other persons.(3) The nature and circumstances of a decision referred to in subsection(2)(c) include the extent to which the requirements for such decision-making are prescribed in or under any other enactment (for example,the Resource Management Act 1991).(4) Subsection (3) is for the avoidance of doubt.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 undersubsection (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 interestin, 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.[17] Also of possible relevance is a general provision at the outset of the LGA,which includes the following:14 Principles relating to local authorities(1) In performing its role, a local authority must act in accordance withthe following principles:(a) a local authority should—(i) conduct its business in an open, transparent, anddemocratically accountable manner; and(ii) give effect to its identified priorities and desiredoutcomes in an efficient and effective manner:(b) a local authority should make itself aware of, and should haveregard to, the views of all of its communities; and(c) when making a decision, a local authority should take accountof—(i) the diversity of the community, and the community'sinterests, within its district or region; and(ii) the interests of future as well as current communities;and(iii) the likely impact of any decision on the interestsreferred to in subparagraphs (i) and (ii):(d) a local authority should provide opportunities for Māori tocontribute to its decision-making processes:(2) If any of these principles conflict in any particular case, the localauthority should resolve the conflict in accordance with the principlein subsection (1)(a)(i).The Council's process[18] Before embarking on an SCP about the desirability of an Easter Sunday tradingpolicy, the Council took various informal soundings. It engaged with retailassociations in Napier, Taradale and Ahuriri, which canvassed their membersreportedly on terms that they were surveying interest on behalf of the Council. Inaddition, the Council engaged with the wider community to survey public opinion bythe on-line research tool Survey Monkey, which the Council advertised on its websiteand on social media via its Facebook page.[19] Ms Kim Anstey, a policy planner with the Council who was responsible forsupervising this work, completed an affidavit describing the steps undertaken. Shedeposed that 271 people responded to the public survey, with some 56 per centfavouring the proposal to give retailers the option to open on Easter Sunday and38 per cent being against. The reporting back on soundings taken of businessesindicated that 64 per cent of the 64 people who responded would favour such a policy.[20] Those responses were deemed sufficient to commit resources to an SCP on thepossible adoption of an Easter Sunday trading policy. Council officers prepared a draftof a proposed policy and referred it, with the survey results, to a meeting of theCouncil's finance committee on 29 November 2016. The Council resolved that thedraft policy should be the subject of public notification through an SCP.[21] Public notice of the proposal was published in the Hawke's Bay Today dailynewspaper on 5 December 2016, and the 7 December 2016 issue of the weekly NapierCourier that is delivered free of charge to Napier residential addresses. The noticeadvised that the statement of proposal for the policy and the proposed policy, togetherwith submission forms, were available at the Napier and Taradale Public Libraries,and accessible on-line on the Council's website. The notice stipulated that the closingdate for submissions was 12 noon on 13 January 2017.[22] In addition to publishing the public notices, the Council issued a media releaseon 30 November 2016 and sent emails to a range of potentially interested organisationssuch as business associations, Hawke's Bay Tourism and the Chamber of Commerce.Ms Anstey deposed that emails were also sent to the New Zealand Council of TradeUnions' head office and the First Union. Similar notice was given via the "NapierCommunity Network", which Ms Anstey described as a group of approximately 100community organisations with which the community services team at the Councilcommunicated on matters of interest to the community.[23] Forty two submissions were received by the deadline. Submitters were splitequally, with 21 each in favour of and against the adoption of the proposed policy.The proposal was then the subject of a Council meeting on 22 February 2017. Threeof the submitters took the opportunity of speaking to their submissions, includingDr Gwynn. Minutes of the meeting record that the hearing of submissions occurredbetween 3.05 pm and 3.30 pm, with the councillors' deliberations beginningimmediately afterwards and concluding by 3.43 pm that day. A modest majority ofcouncillors voted for the policy as proposed. Pursuant to that decision, the policy hasbeen in operation for two Easter Sundays, in 2017 and 2018.[24] In both Dr Gwynn's written submission to the Council, and in his oralpresentation, he protested that the opportunity for consultation was inadequate becausethe period leading up to and including Christmas was exceptionally busy for the clergyand committed Christians. The clergy and vestry offices were then closed for asummer holiday until about or after the closing date for submissions in mid-January.[25] After the policy was in place, Dr Gwynn liaised with representatives of theFirst Union and discovered they had been completely unaware of the proposal,learning of it only after the policy had been adopted by the Council.Grounds for judicial review[26] Dr Gwynn pleaded four grounds for judicial review of the Council's decision.First, he alleged the process adopted was in breach of the Council's consultationprinciples in that the Council failed to make itself aware of and have regard to theviews and preferences of persons likely to be affected by, or having an interest in, themaking of a policy on Easter Sunday trading. Arguably, the Council ought to haverecognised the local Christian community and also the First Union (representingemployees who would be affected) as persons whose views should be sought andencouraged. Dr Gwynn alleged that the decision was made in breach of the principlesin s 14, and the principles of consultation and requirements regarding decision-makingin ss 78 and 82, of the LGA.[27] The second ground of challenge is that the Council failed to consider a relevantfactor, namely any, or any adequate, consideration of the views of the Napier Christiancommunity and of affected employees. The statement of claim alleged that the viewsof both groups were a mandatory consideration for the Council to take into account.[28] The third ground of challenge alleged that the Council's process was irrationalin that it elected to conduct informal consultation with the retail business communitybefore commencing the SCP whilst deciding not to undertake any similar consultationwith trade unions or the Christian community.[29] The fourth ground of challenge is that the Council was influenced by anirrelevant consideration in settling on the process and especially the timing forreaching its decision. Dr Gwynn alleged the timing of the SCP was dictated by theCouncil's desire to have a decision made for retailers before Easter 2017. This was anirrelevant consideration when the Council was under no obligation to reach a decisionwithin that time frame and, by adopting the time frame it did, the Councilcompromised its ability to comply with the consultation obligations under the LGA.Intensity of review[30] For Dr Gwynn, Mr Williams submitted that in considering each of thesegrounds for review, the context and nature of the criticisms warranted the Courtadopting a relatively intense level of review, and taking a "hard look" at the standardof the Council's conduct. Mr Williams submitted that because the subject matter wasnovel, and dealt with matters on which councillors could not be expected to have anyexpertise, the Court should not afford deference to the Council in making its decision.Further, because the subject matter would have required compliance with rightsrecognised in the New Zealand Bill of Rights Act 1990 (NZBORA), if the form ofdecision was addressing the introduction of a bylaw rather than a policy, the analogousobligation to produce a decision consistently with the rights acknowledged inNZBORA also justified the Court in adopting an intense level of review of thedecision-making under challenge. Mr Williams submitted the adoption of such apolicy potentially conflicted with the right affirmed in s 15 of NZBORA to manifest aperson's religion or belief in worship, observance and practice, and arguably the rightaffirmed in s 13 to freedom of thought, conscience, religion and belief.[31] For the Council, Mr Lawson submitted that the subject matter of the Council'sconsideration was not different in kind from a diverse range of other topics on whichterritorial authorities are required to make decisions. For instance, decisions such asthose defining locations in which brothels might be located and granting liquorlicences similarly engage councillors in a consideration of matters that affect and areintended to reflect community values.[32] The majority of circumstances in which the Court needs to consider theappropriate level of intensity of review involves challenges to Wednesburyunreasonableness of the substantive decision under challenge. Mr Lawson drewsupport from numerous judgments dealing with judicial review challenges to thesetting of rates.7 In those cases, the courts have acknowledged a hands-off approachto the relatively broad range of approaches that local authorities can lawfully bring tostriking rates, where rating decisions have been challenged as unreasonable in theadministrative law sense.[33] To the extent that the relative level of intensity of review may be relevant onthe grounds of challenge raised here, such as the alleged irrationality of the pre-SCP7 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1986] 2 NZLR 545 (CA) anddecisions cited in that case.informal consultation, the approach does not require a choice between the binaryoptions of Wednesbury unreasonableness and a hard look. In Progressive EnterprisesLtd v North Shore City Council, Baragwanath J set out a continuum of approaches tojudicial review, which accords greater or lesser intensity in light of a variety of factors,including the nature of the decision and characteristics of the decision-maker.8 In otherdecisions, Courts have made similar observations, employing terminology such as"variable intensity".9 Heightened scrutiny, or a hard look, has been justified in casestouching on fundamental human rights concerns.10 Wherever along the continuum theappropriate intensity of review lies, the Court's function is not to assume the Council'srole but to ensure it has acted lawfully.11[34] A factor against any intensive level of scrutiny in the present proceeding is thatthe structure provided by the LGA reasonably leaves the detail of decision-makingprocesses to local authorities. The Court of Appeal has eschewed any function toengage in intense scrutiny of local authority decision-making processes.12[35] Moreover, the challenges in this case are not about the reasonableness orrationality of the Council's substantive decision to adopt a policy permitting tradingon Easter Sunday. Rather, the challenges are to how the process for arriving at thatdecision was conducted.[36] In exercising the Court's supervisory jurisdiction over the exercise of statutorypower involved in that process, it is relevant that the subject matter is highly vexed,and it was the first time the Council had been required to address it for the Napiercommunity pursuant to the 2016 Amendment Act. On the other hand, after numerousattempts to settle entitlements at a national level, Parliament has devolved the powerto territorial authorities to provide for Easter Sunday trading on a simple binary basis.Implicitly, the elected representatives of the community are best placed to understand8 Progressive Enterprises Ltd v North Shore City Council (2005) 11 ELRNZ 421 at [71].9 See, for example, Mihos v Attorney-General [2008] NZAR 177 (HC) at [98] and Wolf v Ministerof Immigration [2004] NZAR 414.10 See, for example, Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425 at [7].11 Progressive Enterprises Ltd, above n 8, at [72].12 Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR826 at [76].the interests of the community, and will be answerable to them democratically formaking decisions on this topic.[37] In all those circumstances, I consider a moderately intense level of scrutiny iswarranted.[38] I am not persuaded that the process adopted by the Council needed to haveregard to the rights affirmed in ss 13 and 15 of NZBORA. Shops opening on EasterSunday might be seen by those responsible for church services as creating a distractionfor potential members of their congregations, but permitting shops to open is notappropriately characterised as potentially infringing the right to manifest a religiousbelief. I respect the range of concerns that Christians might raise about retail tradingadding to the difficulties for Christian families and wider groups to gather on EasterSunday as a special day, but that is not pressure of a form that unreasonably intrudeson the relevant rights as affirmed in NZBORA.First ground: inadequate consultation process[39] The difference between the parties on the first ground for review is easilydefined and depends on a matter of statutory interpretation. From the Council'sperspective, the SCP represents a higher specification, or more thorough process ofconsultation with the community, for which s 83 of the LGA creates a separate code.The steps in that code arguably replace the consultation procedures that are otherwiserequired of the Council when consulting in a less intense form. Because of thatdistinction, the Council did not consider it necessary to comply with features of otherconsultation processes provided for in, for example, ss 78 and 82.[40] In particular, the higher level of consultation in an SCP meant the Council hadencouraged participation indiscriminately from all sectors of the community. It wouldhave been inconsistent with that approach to comply with the feature of the lesserstandard of consultation required by s 82(1)(a) and (b) to identify those persons whomight be affected by, or have an interest in, the decision, to provide them withreasonable access to the relevant information, and to encourage them to present theirviews.[41] Mr Williams advanced this ground of challenge on the basis that applicableaspects of the more general consultative processes provided for in the LGA alsoapplied to supplement the procedure that a territorial authority had to adopt whenconducting an SCP. Relevantly here, the Council was required to identify Christiangroups and those representing employees of retailing businesses, to afford thosegroups reasonable access to relevant information, and to encourage them to presenttheir views.[42] The inter-relationship between the statutory provisions for the two forms ofconsultation by territorial authorities has not previously been considered in quite thiscontext.[43] The terms of ss 76 to 87 of the LGA do not suggest that Parliament intended tocreate two discrete forms of consultation. Rather, the SCP is treated as an enhancedform of consultation with additional but not distinctly different obligations involved.None of the sections make a distinction that would suggest the process obligations inearlier sections in this part should not apply to the SCP provided for in s 83.[44] Section 76(1) requires that every decision made by a local authority must bemade in accordance with such of the provisions of s 77, 78, 80, 81 and 82 as areapplicable. Parliament could not have included s 83 in that stipulation withoutrequiring the SCP to apply to every consultation undertaken by local authorities, so itsexclusion from that list of sections is logical. However, given Parliament has not madedecisions reached by using the SCP an explicit exception from the scope of s 76(1),the natural meaning extends "every decision" to include those that are arrived at byuse of the SCP.[45] Section 76(3)(b) requires local authorities to ensure that before a "significantdecision" is made, s 76(1) has been observed. "Significant decision" is defined in s 5,with "significant" defined as relevantly including a decision that has a high degree ofsignificance. "Significance" means the degree of importance of the decision, asassessed by the local authority, in terms of its likely impact on, and likelyconsequences for, the district, any persons who are likely to be particularly affectedby, or have an interest in, the decision, and the capacity of the local authority toperform its role. That must logically contemplate, or at least include, those decisionsrequired to be made by using the SCP. There is no justification for interpreting"significant decisions" as relating to some relatively more important subset ofdecisions for which consultation has to be undertaken under s 82, but excluding thosedecisions sufficiently important to require the SCP.[46] Consistently, the stipulation in s 76(4) confirms the scope of s 76(1) asapplying to every decision made by, or on behalf of, a local authority. The inclusionof that provision, for the avoidance of doubt, without expressly excluding decisionsreached using the SCP reflects an intention that the earlier sections do apply to theSCP under s 83.[47] The general standards contemplated in ss 77 to 81 inclusive, to the extent theyaffect the processes for consultation in local authority decision-making, do notdistinguish between the requirements for consultation under s 82 on the one hand ands 83 on the other. Their content clearly suggests matters of general application.[48] The same consistency of parliamentary intent and purpose is reasonablyapparent in comparing the principles of consultation specified in s 82 and therequirements for the SCP in s 83. Section 82(5) provides a limit on the application ofthe principles in s 82(1),13 so they are not to apply where they are inconsistent withspecific requirements of the SCP.[49] Mr Lawson submitted that the distinction between the levels of consultationcontemplated respectively by ss 82 and 83 meant that there was a requisiteinconsistency when a local authority is applying the SCP under s 83, exempting it fromthe obligation to observe the principles of consultation in s 82. I do not see any suchinconsistency. For example, there is a consistency of interest in the quality ofconsultation for the local authority to identify groups affected by, or having an interestin, the decision, and encouraging their participation, irrespective of the relativesignificance to the community of the matter being decided.13 Set out at [16] above.[50] There is nothing in the language of s 83 itself which would suggest Parliamentintended it to be a distinctly different consultative process rather than an amplificationof the type of consultation to which the principles in s 82 would apply.[51] In Whakatane District Council v Bay of Plenty Regional Council, the Court ofAppeal considered consultation provisions that were different in some detail butsubstantially the same in their overall effect.14 The matter being considered by therespondent regional council was whether it should relocate its head office fromWhakatane to Tauranga. At that time, s 78 of the LGA required a local authority togive consideration to the views and preferences of persons likely to be affected by, orhave an interest in, the matter at four separate stages of the development andprogression of a proposal up to adoption of a decision. The Court of Appeal set asidethe regional council decision on the ground that its consultation on the proposal didnot comply with the then statutory requirements of s 78 for separate consultation atdefined stages of the decision-making process.[52] Shortly after the Court of Appeal's decision, s 78 of the LGA was amended toremove the obligation for consultation at four stages in the decision-making process.Apart from repeal of that provision, the relevant provisions in ss 78-82 of the LGAaddressing consultation obligations remain the same.[53] The proposal to shift the regional council's headquarters constituted anamendment to the long-term community plan, which meant the decision was subjectto the SCP. It does not appear to have been contested that relevant requirements in theother statutory provisions addressing non-SCP consultations also applied. The issuewas whether the regional council's consultation processes had been sufficient todischarge its obligation to consult at the first two of the four specific stages thenrequired by s 78(2). Although the application of the non-SCP provisions was notcontested, the Court of Appeal's reasoning reflects a statutory scheme in which it islogical and appropriate to treat the processes provided for in non-SCP consultation(including ss 78 and 82) as applying when a council is undertaking an SCP.14 Whakatane District Council v Bay of Plenty Regional Council, above n 12.[54] Mr Lawson cited the observation of Mallon J in an earlier judicial reviewchallenge to this Council's decision in Friends of Marineland of New Zealand Inc vNapier City Council as supporting the character of the SCP as distinctly different.15 Inreviewing the features of s 82 in that decision, Mallon J observed:[49] There is a separate provision which sets out the requirements on alocal authority when it is required by statute to use or adopt "the specialconsultative procedure". That is a more prescriptive kind of consultationtha[n] that which may be undertaken in accordance with the principles in s 82.That procedure applies to certain types of decision (not relevant here) or whenthe local authority chooses to use the special consultative procedure.[55] I do not accept that the characterisation of the SCP as "a more prescriptive kindof consultation" suggests a distinction that requires the exclusion of the principles ofconsultation found in s 82. As is apparent from the passage quoted, the Marinelanddecision did not involve the SCP.[56] Mr Lawson also cited an observation of the Court of Appeal in MangawhaiRatepayers and Residents Association Inc v Kaipara District Council as confirmingthe distinct character of the SCP because of its characterisation as "comprehensive".16In that litigation, it was common ground that the local authority had acted illegally ina number of respects in striking a rate to recover the cost of a waste water treatmentproject. In describing the context of the local authority's admitted failings, thejudgment includes:[24] The [LGA] further specifies that a local authority can do certainthings only if they are expressly provided for in its long-term plan. It mustuse a special consultative procedure when it adopts a long-term plan. Thatprocedure is comprehensive. It requires, among other things, that before theplan is adopted the community must be given a fair representation of what isto be included in it, including information about effects on rates, debt andservice levels. [57] The observation that s 83 provides comprehensively for the SCP to applycannot imply that the SCP is distinct from the principles of consultation in thepreceding sections of the LGA. The more logical approach is that the SCP is still15 Friends of Marineland of New Zealand Inc v Napier City Council [2012] NZHC 1070 (citationsomitted).16 Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA612, [2016] 2 NZLR 437.informed by those principles, about which the description of the statutory context inthe Mangawhai decision says nothing.[58] Neither party cited the decision of Simon France J in Karaka Point EnvironsResidents Inc v Marlborough District Council.17 I treat that decision as adopting aninterpretation of the relationship between ss 82 and 83 of the LGA consistently withthat which I prefer.[59] In that case, the Court found that there had been a breach of the consultationprocess provided for in s 82 in the course of the council conducting an SCP under s 83.The analysis in the case rests squarely on the premise that the requirements for anyconsultation process as set out in s 82 apply when conducting an SCP.18 The proposalon which the SCP was undertaken related to alterations to the council's long-term plan.One aspect of those alterations was to change some 58 properties from one ratingcategory to another, involving a substantial increase in rates for those properties. Thesummary of the proposal did not specifically reference the rating change, and theaffected ratepayers were not specifically notified of the rating change until well intothe one month consultation period. In considering deficiencies in the s 83 SCP, theJudge had regard to the obligations to provide notice, information, and an opportunityand encouragement to participate, all of which are derived from s 82.[60] Simon France J also observed that compliance with the formal obligations inthe LGA would not always necessarily discharge all of the local authority'sobligations.19 I agree with that caution. The requirements in s 83 are reasonablytreated as appropriate for the majority of SCPs, but may, depending on thecircumstances, be inadequate in a particular case. That prospect is relevant inconsidering the fourth ground of challenge and in considering the Council's contentionthat it was only obliged to give one month's notice when it gave five weeks.[61] I am accordingly satisfied that the principles of consultation specified ins 82(1) of the LGA do apply when a local authority undertakes an SCP. Given the17 Karaka Point Environs Residents Inc v Marlborough District Council [2013] NZHC 2577, [2014]NZAR 244.18 At [81].19 At [37].Council's response to this ground of challenge, namely that it was not required tofollow the steps specified in s 82, then its misunderstanding of the scope of its legalobligations suggests there has been a relevant breach.[62] Mr Lawson's alternative response to this ground of challenge was that theextent of consultation, and in particular the extent to which the Council publicised theproposal by various means, was sufficient to discharge the extent of the obligationsrequired under s 82(1) of the LGA.[63] I am not satisfied that the steps taken were sufficient. Apart from Dr Gwynnand a limited number of other individual Christian submitters, numerousrepresentatives of various parts of the Napier Christian community either remainedcompletely unaware of the proposal, or were confronted with it only at a seasonal timewhen responding to it in a meaningful way was not reasonably possible. Dr Gwynnmakes the point that other Christian communities were not contacted, such as thechurches for the Pasifika community for whom Easter is a matter of real spiritualimportance as a family break. The decision was made without encouraging any inputfrom them when they were among those reasonably identified as being affected by, orhaving an interest in, the outcome. Similarly with the trade union representingemployees in retail outlets, affidavits were filed confirming that they remainedignorant of the proposal until the policy had been adopted and publicised.[64] If the extent of public communication of the proposal was otherwise adequate,which I do not accept, then the Council could be found separately to have breached itsobligation to encourage involvement given its response to Dr Gwynn's protest.Dr Gwynn conveyed, both in his written submission prior to the hearing on the matterand during his oral presentation, that the time allowed for preparation of submissionshad been quite inadequate given the seasonal pressure on church leaders. In a contextsuch as this, declining a request for more time is the antithesis of encouraging thataffected sector of the community to participate. The stipulation in s 83(1)(b)(iii) thatthe period for providing responses to a proposal is to be not less than one month cannotof itself be justification in every case for declining more time. Here, even though fiverather than four weeks was provided, a sector of the community that the Councilshould have recognised was affected by, or had an interest in, the outcome asked formore time in circumstances where there was a reasonable explanation for their beingunable to meet the timetable the Council had imposed. Such circumstances are likelyto be relatively unusual, but they demonstrate the point that the statutory minimummay occasionally be inadequate.[65] Accordingly, breach of the statutory consultation obligations is made out.Second ground: failure to consider a mandatory relevant factor[66] Mr Williams argued that because both the Napier Christian community and thetrade union representing shop employees were so clearly persons affected by, orhaving an interest in, the decision, consultation with them and consideration of theirviews constituted a mandatory consideration for the Council in reaching its view onthe proposed Easter Sunday trading policy. Arguably, the decision had been madewithout having regard to the views of those interested groups.[67] Mr Lawson rejected the notion that the statutory procedure gave rise to anymandatory considerations at all. Instead, again drawing analogies with judicial reviewchallenges to local authority rate-setting decisions, he characterised the Council asundertaking a broad political assessment. It is one on which the elected representativeshave a discretion as to the matters that they took into account.20[68] It follows from my finding upholding the first ground of challenge that lawfulcompletion of the SCP required the Council to encourage an expression of views bythose affected by, or having an interest in, the outcome. That carries with it an implicitobligation to take such views as are communicated into account. That is not to saythat there is necessarily any fetter on the Council's discretion to attribute to such viewswhatever weight the councillors consider is appropriate, including possibly rejectingthem. However, it may be sufficient on this ground of challenge to make out that thedecision was made by the Council in the context of ignoring a legal obligation toencourage views from both these interest groups.20 For example, Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537(CA) at 545.[69] In this case, Ms Anstey deposed that emails advising of the SCP on theproposed Easter Sunday trading policy were sent to the New Zealand Council of TradeUnions' head office and to the First Union. The latter addressee of such an emailadvised that emails should be sent directly to the national secretary and the centralregion secretary, which was done. No copies of such emails were exhibited butMr Williams did not challenge the veracity of Ms Anstey's description of the forms ofcommunication undertaken.[70] Instead, Mr Williams relied on the affidavit of Mr Michael McNabb, theregional cross-sector representative for the First Union based in Napier. Mr McNabbdenied that the local trade union centre in Napier had received any notification, and helearned there had been such a process only after it was concluded.[71] Evidence from a former First Union representative, Ms Maxine Gay, was tothe effect that had appropriate personnel in that union been on notice, then they wouldhave participated. Ms Gay was, at the time, secretary of the retail, finance andcommerce sector of the First Union, and was also part of the national managementcommittee and a member of the national executive of the First Union. In thosecapacities, her responsibilities included responding to initiatives on shop trading hoursand she denied that those with the relevant responsibilities were given notice of theCouncil's proposal. She deposed that, had they known, the Union would haveparticipated, which they have in a significant number of other local authorityconsiderations. She outlined by way of example the extent of involvement inconsultation on the same issue in Auckland. In that consultation, the local authorityhad been conscious of the prospect of employers exerting influence over the viewsexpressed by employees. Because of that concern, the local authority had facilitatedopportunities for private comment by and on behalf of employees, in the absence ofemployer representatives.[72] Accepting Ms Anstey's evidence, the extent of email communicationsdespatched by the Council would be sufficient to discharge an obligation to providenotice to the First Union. However, this consultation process required more. TheCouncil did not meet its obligation to encourage participation by the First Union, orother employee representatives, who were clearly a vitally interested sector of thecommunity.[73] As to notification and encouragement to the Napier Christian community,affidavits in support of Dr Gwynn's application included two from Napier clergymen.The first was from Mr Bruce Collingwood, senior leader at the Oasis Church in NapierSouth and leader of the Napier Ministers' Network, which represents a broad cross-section of the churches in Napier covering some 28 organisations. He deposed thatthe churches within the network were never given specific notice, nor were theyapproached by the Council about its intention to change the rules at what he consideredto be short notice. He deposed that a large majority of the members of the networkwere unaware of the Council's proposal until after the period for submissions hadclosed. In his affidavit, Mr Collingwood invited an analogy with the situation wherethe Council was considering a policy to allow trading on ANZAC Day morning, inwhich circumstance he suggested it would be reasonable to expect that the ReturnedServicemen's Association would be given specific notice and be encouraged to submiton such a proposal. I accept that leaders of Christian communities are in a relevantlysimilar position in relation to allowing retail trading on Easter Sunday.[74] The second affidavit was filed by Mr Andrew Hedge, the bishop of the dioceseof Waiapu and therefore the leader of the Anglican church in that diocese, whichincludes Napier. Bishop Hedge learned of the proposal from Dr Gwynn on 15 January2017, after the period for submissions had already closed. He deposed that the veryfull commitment to pre-Christmas and Christmas activities in the Christian calendar,and thereafter the taking of a summer holiday, would practically preclude parishesconferring with their vestries and providing a response within the time that wasprovided for submissions.[75] It might be argued that Dr Gwynn's awareness of, and response to, the proposalwas a sufficient indication of the views of the Christian community, particularly whencombined with the other individual Christian submitters. However, Dr Gwynn's ownevidence records numerous respects in which arguments beyond those that he was ableto articulate could have been presented, and with substantially greater weight, if therehad been a fuller opportunity for presentation of submissions. Certainly, there was noconduct on the Council's behalf that could qualify as encouragement to the leaders ofthe Christian community to participate in the submission process.[76] I accordingly find that it was mandatory for the Council to encourageparticipation by the Christian community and employees' representatives, and that theCouncil did not give the requisite encouragement. Nor did it reflect on the absence offuller responses from the Christian community given Dr Gwynn's protests at theinadequacy of the opportunity for them, and it did not reflect on the complete absenceof submissions on behalf of employees. Although the decision ostensibly reflected onmatters of concern to the Christian community and to employees, the Council's failureto encourage and obtain the views of those parties means its decision was made withinsufficient information on those views. Where the Council was on notice that at leastone of those interested groups wished to make submissions but had not been able toon grounds the Council could have accepted as reasonable, then the Council proceededto make its decision without regard to a relevant consideration.Third ground: irrationality[77] Mr Williams argued that it was irrational for the Council to undertake pre-consultation and then on-going dialogue with retailers and their representatives, whenthere was no equivalent testing of attitudes with those who could predictably be seenas being on the other side of the argument. Although framed as an administrative lawirrationality argument, the essence of this complaint was the apparent unfairness ordiscriminatory attitude of the Council in favouring the retailers who would beadvantaged by any policy permitting Easter Sunday trading, and ignoring the readilyidentifiable interests who would be opposed to it.[78] Mr Williams invited an analogy with the Court of Appeal's decision inWellington City Council v Minotaur Custodians Ltd, in which irrationality was allegedin the council's decision as to the categories of potentially interested persons it notifiedof the relevant initiative.21 In that litigation, the council was proposing to alter parkingrestrictions in a particular area and consulted all occupiers of properties in that area,but not absentee property owners. The Court of Appeal rejected the criticism in that21 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.case on the basis that those not advised of the proposal had "more subtle and lessobvious" interests.22[79] Mr Williams argued that Christian groups and union representatives werestarkly identifiable as the equivalent opposing interest groups to the retailers, whichwas the group potentially favoured by the proposal, so that the absence of equaltreatment was a form of irrationality.[80] I am not satisfied that the different treatment complained of amounts toirrationality. The Council did have a financial responsibility not to embark on thework and expense involved in an SCP if the retailing community did not demonstratesufficient interest in opening on Easter Sunday in any event. Pre-consultation withthem was therefore a valid step on its own, not triggering an obligation to afford equaltreatment to the interest groups likely to be opposed to the initiative.[81] Dr Gwynn did make a valid complaint that once the Council decided to embarkon the SCP, it kept the retailing interests appraised in a way that afforded them betternotice of the opportunity to make submissions. However, that cannot constitute aground for finding the overall process inadequate. That complaint is better consideredin terms of the appropriate level of consultation and encouragement afforded toChristians and employees, a matter already addressed under the previous two grounds.[82] Accordingly, I am not persuaded that the irrationality ground can be made out.Fourth ground: taking into account an irrelevant consideration[83] The last pleaded criticism of the Council's process is that its decision on timingwas influenced by a desire to provide a decision for Napier retailers sufficiently beforeEaster 2017 to enable them to act on it. Mr Williams argued that the timetable forprogressing consideration of the policy was dictated or materially influenced by thewish to have the matter resolved in time for Easter 2017, and that this was an irrelevantconsideration when the Council's focus should have been on compliance with the22 At [64].principles of consultation in s 82 of the LGA and the s 14 principles relating to theconduct of local authorities.[84] I am satisfied that the timeline recommended by Council officers was to accordwith the deadline identified in MBIE's advice.23 It is tolerably clear that the Councilwas aware that it was not under any obligation to have produced a decision in time forit to apply to Easter 2017. Rather, it was perceived as desirable to have the issueresolved, if it was possible to do so.[85] I am not satisfied that the Council rejected Dr Gwynn's request for more timefor affected persons to make submissions because of a view that it was necessary tocomplete the decision-making process within the timeline originally identified. Giventhe Council's misapprehension that its obligations in conducting an SCP did notinvolve compliance with the principles for consultation in s 82, it is equally likely thatit considered the steps it had undertaken were sufficient to comply with its statutoryobligations. In those circumstances, it is inappropriate to characterise the Council'sinterest in completing its decision-making process within the timeline originallyidentified as an irrelevant consideration in settling on the process it adopted. Rather,its failure to accede to the request which it should have done to discharge its s 82obligation results from a misunderstanding of the extent of its legal obligations toconsult. It is not separately made out as an administrative law error in the nature ofhaving regard to a timing imperative as an irrelevant consideration.Discretion on relief[86] If the Council was found to have made justiciable error, Mr Lawson submittedthat I should exercise my discretion not to grant any relief.[87] I have found that two grounds for judicial review have been made out. Theyreflect errors in a statutory consultation process of a type where the Court wouldgenerally not exercise its discretion to withhold relief. In considering the discretion,it is appropriate to have regard to the relative gravity of the errors, the practical value23 See [13] above.to the applicant of the relief sought, and whether granting relief would affect theinterests of third parties.[88] Mr Lawson submitted that the policy has now been in operation for two EasterSundays, so that a pattern of behaviour by retailers would be unnecessarily disrupted.He argued there was no evidence that Christian communities had been adverselyaffected by the policy, nor was there such evidence in relation to the circumstances ofretail employees. The STHA requires the policy to be reviewed no more than fiveyears after its adoption, and directing a fuller consultation process the next time it isto be undertaken should be sufficient to address any error identified.[89] In this case, there was not a complete failure to conduct consultation. Theerrors are rather inadequacies in the way it was carried out. I do not accept, however,that the errors were merely technical. The approach to local authority governance ins 14 of the LGA and the detail of the consultation principles in s 82 attribute a measureof importance to effective participation by those affected by a decision. Councillors,as elected representatives, are expected to be sensitive to the democratic process ofconsultation and here the decision-makers were short-changed in that regard.Correspondingly, the rights of potential submitters were infringed so that the errorsare indeed more than technical.[90] After an evaluation of the relative importance of the interests of those retailerswho have elected to open on either or both of the last two Easter Sundays, weighedagainst the interests of those opposed to the policy who were unable to effectivelyparticipate in consultation, I would prefer the latter interests. There is clearly time forthe Council to conduct a further SCP before Easter 2019. Dr Gwynn readily acceptsthat if the SCP is undertaken properly but the same decision is arrived at by theCouncil, then he and his supporters can have no complaint. Conversely, if the Councilreaches the contrary view on an Easter Sunday trading policy after encouraging thoseaffected by, or having an interest in, the outcome and hearing all the submissions, thena grant of relief in this proceeding would be vindicated.Result[91] I am satisfied that this is not a case in which to withhold relief and I accordinglydeclare the Council's decision to be invalid and set it aside.Costs[92] Dr Gwynn is entitled to costs, to be calculated in accordance with scale 2B,plus recoverable disbursements.Dobson JSolicitors:Carlile Dowling, Napier for applicantLawson Robinson, Napier for respondent