TCDC Camping By-Law Thrown Out
Monday, August 25, 2014 at 5:38PM
Bill Barclay

Mr Justice Cooper gave short shrift to the TCDC Freedom Camping By-Law in a decision handed down today, and reported on the Radio NZ at 5 pm.

He also ruled that amendments on 13 March and 27 November 2013 were unlawful. This is a major blow for our Council -its amendments in June will be unlikely to survive in the circumstances.

Obviously there was insufficient time for a proper examination of the decsion - there is nothing on any of the other news websites. 

More as soon as it becomes available. I will endeavour to track down a copy of the actual decision.

Update on Monday, August 25, 2014 at 6:33PM by Registered CommenterBill Barclay

Here is the decision

Analysis tomorrow.

Update on Tuesday, August 26, 2014 at 9:39AM by Registered CommenterBill Barclay

Cooper J, rejected Ms Chen's contention that the By-law is so extensive as to amount to a blanket prohibition, but he rejected the Council's contention that a prohibition at a reserve or beach front should extend to the adjacent urban area.

He further declared the attempt to add further areas by later amendment to be unlawful because of failure to further consult on the changes, but he rejected the MCA's claim that the Council could not reasonably be satisfied of s.11(2)(a) matters. That is quite significant in terms of validating the actual terms of the By-law, along with his rejection of the MCA's argument that the By-law was a "a disproportionate response."

Cooper J. further knocked back Ms Chen's arguments in regard to the alleged breach of the Bill of Rights Act:

"However, it is not necessary to decide the point because even if the right is breached, the breach is not a significant one and, on the view I take, the limitations arising from the Bylaw are justified limitations in terms of s 5 of the Bill of Rights Act."

He made the following orders:

(a) I direct the Council forthwith to take the necessary statutory steps pursuant to s 156 of the Local Government Act 2002 to revoke Clauses 203.5 and 2003.5 of its Consolidated Bylaw.

(b) The Council should diligently proceed with and complete the steps required by paragraph (a).

(c) Pending completion of the steps required by paragraph (a) I direct that the Council is not to enforce Clauses 203.5 and 2003.5 of its Consolidated Bylaw.

(d) I declare that the amendments made to the Freedom Camping Bylaw on 13 March and 27 November 2013 were unlawful. The amendments are severed from the Freedom Camping Bylaw and quashed.

It seems to me that the Judgement is indeed a win for the Council in terms of the manner in which it has already set out to to enact a further By-law that apears to take into account the requirements as stated by Cooper J., and that the MCA will remain aggrieved, and likely to look for some aspect that can be challenged.

It is my view that contrary to the National News report at 5pm yesterday, and elsewhere today, that the Council is now on fairly safe ground with regard to the 2011 By-law, and its new replacement that it adopted in June and which is being subjected to public consultation as we speak. The only problem that I can see arising from the Judgement is if the new Schedules are challenged on the grounds of being too explicit or extensive, and not in accordance with the spirit of the Judgement, but the MCA would be pulling a very long bow in order to win that round.

The final blow to the MCA's case in contained in para 141 of the Judgement:

"The Association’s claim is otherwise dismissed, subject to the reservation in [139]."

Para 139 reads:

"The intent of the foregoing orders is that, for the future, freedom camping in the Council’s district shall be governed only by the terms of the Freedom Camping Bylaw as may be validly amended from time to time. This judgment is not intended to hold and does not hold that the Council could lawfully maintain in force the Freedom Camping Bylaw and Clauses 203.5 and 2003.5 of the Consolidated Bylaw."

Pretty bloody conclusive I would have thought, and gives my earlier contention of a "lay-down misere" in favour of the MCA a fairly bold kick into touch! I am the first to acknowledge my mistake in that regard - the lesson being never to pre-judge judgments!

All that remains is the completion of the current consultation process, and implementation of the new By-law - hopefully with little further delay - probably on 1 October.

What is crystal clear is that the wording of the new By-law, principally by the recently departed Katina Conomos is likely to now become the standard wording adopted by councils throughout the country who have been awaiting the outcome of this case with considerable angst. In fact, the original Benjamin Day wording was so faulty that it needed this case to pin-point the changes needed, and that has been done as far as I can see.

Cooper J.s Judgment is destined to become Obiter Dicta for some considerable time to come, and as a final comment, hopefully the MCA's 56,000 members should be contributing to by far the majority the costs in this case - Cooper J. has reserved judgement in that regard, no doubt hoping that our Council and the MCA will reach a satisfactory agreement.

 

Update on Tuesday, August 26, 2014 at 4:47PM by Registered CommenterBill Barclay

There are three things about which there should be absolute clarity:

(a)   Cooper J. made no ruling regarding the repayment of any fines imposed as the result of the faulty By-laws he declared "unlawful" - simply that Council must cease forthwith the enforcement of those faulty By-laws.

(b)   It appears certain that Council can enforce Schedules A and B in the new By-law to whatever extent it deems necessary, and to which it has applied the three statutory tests in each and every case. 

(c)   Beyond Schedule A and B, Cooper J. has made no ruling on Council's ability to impose a blanket ban elsewhere on un-serviced vans. This may yet be tested by MCA in a subsequent hearing, but I cannot see them getting that altered.

Otherwise, the Judgement is an object-lesson in clarity, and obviously written with a view to avoiding any possible grounds for appeal. But we shall see - the MCA pockets are very deep, and Ms Chen is generally reluctant to accept defeat.

 

Update on Tuesday, August 26, 2014 at 5:11PM by Registered CommenterBill Barclay

This is how Council summarised the situation:

  • NZMCA challenged the 2011 Bylaw  claiming that Council had exceeded its authority under the Freedom Camping Act 2011 and the New Zealand Bill of Rights Act 1990
  • NZMCA challenged two amendments made to the bylaw in 2013, these were amendments made by Council resolution.
  • NZMCA challenged the present restrictions on camping contained in the Public Places Bylaw and the Parking Control Bylaw
  • The Court upheld points 2 and 3, Council is already well into the process of removing the two clauses from the bylaws, which inadvertently were in contradiction to each other.

A little cute perhaps, but perfectly defensible!

 

 

 


Article originally appeared on BillBarcBlog (http://billbarclay.co.nz/).
See website for complete article licensing information.