New Zealand Case Law: Decisions & Judgments

Topic

Fettering discretion

Legal area

Court

5 Sept 2019

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v CANTERBURY REGIONAL COUNCIL [2019] NZHC 2223

Citation

[2019] NZHC 2223
Court

High Court

The Advice Note is unlawful because, read as a whole, it purports to adopt a policy of not enforcing the HWRRP change of land use rule in relation to 'normal' or 'bona fide' dryland farming and thereby unlawfully fetters the Council's obligation to enforce the plan; the Environment Court erred in concluding the Note was legally sound except for two statements; the NPSFM ground was not established on the facts.
19 Jun 2019

TEVAGA v THE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 1409

Citation

[2019] NZHC 1409
Court

High Court

The Level 3 limitation in the operational Guidelines was inconsistent with the Programme Schedule and exceeded the power conferred in cl 6(2A); accordingly the Guidelines unlawfully fettered the Chief Executive's discretion and are invalid.
28 Feb 2018

FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2018] NZCA 27

Citation

[2018] 2 NZLR 884
Court

Court of Appeal

The Elwood policy unlawfully fettered the Chief Ombudsman's s 28A discretion by imposing a two-stage threshold that precluded consideration of relevant stage two factors (omnibus ombudsman-like qualities and consistency with existing consents); the Chief Ombudsman also failed to take into account the relevant consideration of consistent treatment of similar schemes, warranting setting aside the decisions and remittal for reconsideration.
30 Sept 2013

THE CANCER SOCIETY OF NEW ZEALAND INCORPORATED v THE MINISTRY OF HEALTH [2013] NZHC 2538

Citation

[2013] NZAR 1461
Court

High Court

The enforcement officers exercised a reviewable statutory power affecting rights; the Ministry's Guidelines and Open Areas Calculator introduced air‑quality/ventilation criteria that are extraneous to and inconsistent with the statutory definition of 'open area'/'internal area', thereby unlawfully fettering enforcement discretion; the decision based on the Calculator was therefore erroneous and must be quashed and the complaint reconsidered under the statute.
20 Oct 2008

MY NOODLE LIMITED AND ORS V QUEENSTOWN LAKES DISTRICT COUNCIL AND ANOR HC CHCH CIV-2007-485-002559

Citation

openlaw-3cec540b_b11e_4e19_9100_a064c46b573c.pdf
Court

High Court

Leave to appeal was granted because the reformulated questions involve matters of general and public importance and novel statutory interpretation issues under the Sale of Liquor Act 1989 concerning the extent to which s20 reports and the Licensing Authority may rely on local authority liquor policies when considering renewal under s22 and decisions under s23; the High Court held on the facts the Authority had not fettered its discretion but the legal questions warrant determination by the Court of Appeal.
4 Jun 2008

MY NOODLE LIMITED AND ORS V QUEENSTOWN LAKES DISTRICT COUNCIL AND ANOR HC CHCH CIV-2007-485-002559

Citation

openlaw-9255179f_0dcf_43dc_8290_e8735544dd0d.pdf
Court

High Court

The Authority did not fetter its discretion by relying on the Council's properly consulted trading‑hours policy in s20 reports; it lawfully varied renewal licence hours under ss22 and 23, its decision to implement the 21‑hour regime with a 12‑month deferred start and to allow review was within power and supported by evidence and specialist judgment, and the appeal was dismissed.
25 Sept 2007

THE COMBINED BENEFICIARIES UNION V THE AUCK CITY COGS COMM HC AK CIV 2005-404-6807

Citation

openlaw-e62f45a4_f031_4a63_a2cc_2fa9cf771b09.pdf
Court

High Court

The Department's 2005 'grants online' process introduced a mandatory ten working day rule that significantly changed prior flexible practice; adequate notice that time was of the essence was required but was not given to the Union; that failure deprived the Union of the opportunity to have its applications considered and thereby breached procedural fairness at common law and s 27(1) NZBORA; the Committees effectively fettered their discretion by ratifying the departmental rule without proper consideration; appropriate remedy is a declaration and costs, not damages in the circumstances.

New Zealand Case Law

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v CANTERBURY REGIONAL COUNCIL [2019] NZHC 2223

TEVAGA v THE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 1409

FINANCIAL SERVICES COMPLAINTS LTD v CHIEF OMBUDSMAN [2018] NZCA 27

THE CANCER SOCIETY OF NEW ZEALAND INCORPORATED v THE MINISTRY OF HEALTH [2013] NZHC 2538

MY NOODLE LIMITED AND ORS V QUEENSTOWN LAKES DISTRICT COUNCIL AND ANOR HC CHCH CIV-2007-485-002559

MY NOODLE LIMITED AND ORS V QUEENSTOWN LAKES DISTRICT COUNCIL AND ANOR HC CHCH CIV-2007-485-002559

THE COMBINED BENEFICIARIES UNION V THE AUCK CITY COGS COMM HC AK CIV 2005-404-6807