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Wednesday
Aug272014

MCA Puts Its Own Slant On The 'Decision'

You will seldom see a self-serving interpretation of a High Court decision as biased as the one that was circulated to MCA members yesterday by NZMCA President Bruce Stanger. One really needs to question whether they are reading the same decision. 

NZMCA President Bruce Stanger is hailing the long-awaited High Court judgement over the Thames Coromandel District Council’s consolidated freedom camping bylaws as ‘a tremendous result’ for the organisation.

Delighted that Justice Cooper’s decision has upheld the vast majority of the NZMCA’s concerns with the legality of TCDC’s consolidated freedom camping by-laws, Mr Stanger says the key aspects of the judgement include:

 * The amendments TCDC made to its Freedom Camping by-law in 2013 were unlawful; and

 * TCDC’s use of Parking Control and Public Places by-laws as an integral part of the council’s consolidated freedom camping by-laws were illegal.

 As a result, Justice Cooper has ordered that the Council’s 2013 amendments be ‘severed from the Freedom Camping bylaw and quashed’; he has directed the council to revoke clauses of the Parking Control 2003.5 and Public Places 203.5 bylaws as part of their consolidated freedom camping by-law; and finally to not enforce these by-laws any longer.

 “That’s great news for our members who were only ever interested in responsible freedom camping,” said Mr Stanger.

 “This decision means they now know that they can no longer be served with unlawful infringement notices, which vindicates the Association’s stance in taking this High Court action.

 “With Justice Cooper having ordered that the illegal clauses now be removed from TCDC’s by-laws we can have confidence that the remaining by-law will meet the requirements of the Act.

 “However, today’s decision also raises the question of the council refunding those unlawfully-gathered fines. They may not have a legal obligation to do so; but in light of the fact that TCDC conceded in Court that the amendments were made unlawfully – a point on which Justice Cooper agreed – we certainly believe they have a moral obligation to refund the fines to affected members of the public.”

For starters - there is no "remaining By-law" - there is a new By-law, passed in June, put out to consultation, and due back into Council for final enactment, I think on 1 October. This does not for a moment gainsay the implied and actual criticism of the Council's process that is contained in the decision. Nor does Hammond's excuse that the amandments were framed at the time of the Rugby World Cup hold water. There is no excuse for bad drafting, but even sovereign governments are at times required to pass amendments to correct drafting errors - it happens all the time!

Clearly, Mr Stanger does not understand the terms of the Decision relating to the Schedules, and imposition of 'serviced van' rules in regard to all other areas not covered by the Schedules. It may come as a surprise when the first fines are issued under the new By-law.

As for refunding of fines imposed under the "unlawful" provisions - it may take a Court challenge to enforce any "moral" obligation, and I suspect the "good faith" may become a consideration if such a challenge eventuates.

 

 

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Reader Comments (5)

Bill, I only wish to correct you in that until the Council adopts the new bylaw currently out for consultation, the original 2011 bylaw (without amendments) is still in force. However, the public places and parking control bylaws, which prohibited freedom camping everywhere except the two original sites in the 2011 bylaw have to be revoked (which is happening).

I can see there is little value arguing over the decision, however the above needs to be pointed out.

August 27, 2014 | Unregistered CommenterJames Imlach (NZMCA)

I would like to know more from James Imlach about the justification for reimbursement of fines collected while the bylaw was illegal. it would seem to me that if the TCDC implemented any fines while knowing the bylaw was illegal, then there is a strong ethical or moral issue of reimbursement. But I would like to hear from James about this?

August 27, 2014 | Unregistered CommenterDal Minogue

You are corect James - well spotted!

August 27, 2014 | Unregistered CommenterBill Barclay

Hello Dal,

The amendments were made in March 2013, and in April 2013 the NZMCA approached the Council concerned that given the amendments were not 'minor' the special consultative procedure had not been followed as required under the Act. The Council was adamant the changes were legitimately made. We agreed to disagree. Throughout 2013 the NZMCA received complaints from members and the public (in certified self-contained vehicles) who were receiving $200 fines for camping in the new areas introduced by the amendments. I know of at least one case where a fine was issued prior to the amendments actually coming into force, which the Council eventually agreed to withdraw. Information obtained under LGOIMA suggests around 300 invalid notices had been issued in the amended areas during 2013. Other authorities were making bylaws and assumed if they amended their bylaw (like TCDC did) they too didn't need to follow the SCP under the Act. This was a significant concern for the NZMCA that the public was about to be shut out of the law making process. Hence one of the reasons a judicial review was sought.

When proceedings were lodged in December 2013 the Council maintained the amendments were lawfully made. Four months later in Court the Council conceded that amendments were unlawfully made. From their evidence it seems the mistake was down to incorrect legal advice. I don't know exactly when they realised this mistake so it would be wrong to state the Council continued to issue fines knowing the amendments were unlawfully made.

As Bill has correctly pointed out the Council is not legally obliged to refund the invalid notices. To the Councils credit they put their hand up (although it took a judicial review for this to happen) so it seems only right that they agree to refund the fines if members of the public come forward and request their money back. If you or I were forced to pay $200 when we didn't actually break the law I'm sure we would be asking for a refund.

I don't know what the Council is prepared to do here. Legally they don't have to do anything. However, to think any Council would be happy to hold onto tens of thousands of dollars that it admitted it didn't have a right to collect in the first place is unconscionable.

August 28, 2014 | Unregistered CommenterJames Imlach (NZMCA)

James makes a valid and considered point here - Council is certainly in a bind - the question as to when, who, and at what level the 'mistake' was acknowledged is obviously critical. It seems likely that they will seek to reach an accomodation on this, and the error could end up costing ratepayers, as usual. Certainly, further litigation is undesirable. You may need to write a 'nice' letter James, and see where it ends up.

August 28, 2014 | Registered CommenterBill Barclay

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