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[2014] NZHC 2016 UNDER the Judicature Amendment Act 1972

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[2014] NZHC 2016 UNDER the Judicature Amendment Act 1972 IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV-2013-419-955 [2014] NZHC 2016 UNDER the Judicature Amendment Act 1972 and Bylaws Act 1910 BETWEEN THE NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED Plaintiff AND THAMES-COROMANDEL DISTRICT COUNCIL Defendant Hearing: 15 and 16 April 2014 Appearances: M Chen and K Van Houtte for Plaintiff P M S McNamara and R J O'Connor for Defendant Judgment: 25 August 2014 JUDGMENT OF COOPER J This judgment was delivered by Justice Cooper on 25 August 2014 at 1.00 p.m., pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Chen Palmer Public and Employment Law Specialists, Auckland Simpson Grierson, Auckland THE NEW ZEALAND MOTOR CARAVAN ASSOCIATION INCORPORATED v THAMES-COROMANDEL DISTRICT COUNCIL [2014] NZHC 2016 [25 August 2014] Contents Introduction ............................................................................................................ [1] The Freedom Camping Act 2011 ........................................................................... [8] The Freedom Camping Bylaw 2011 .................................................................... [19] Amendments to the Bylaw ................................................................................... [11] The Public Places and Parking Bylaws ................................................................ [36] The Public Places Bylaw 2004 .................................................................. [37] The Parking Control Bylaw 2004 .............................................................. [43] The pleadings ............................................................................................. [47] Did the Council revoke the other Bylaw provisions? ................................. [51] Should the other bylaws be quashed? ........................................................ [59] Validity of the Freedom Camping Bylaw............................................................. [65] Section 11(2)(a) .......................................................................................... [85] Section 11(2)(b) ........................................................................................ [115] Section 11(2)(c) ........................................................................................ [117] Repugnancy .............................................................................................. [136] Result.................................................................................................................. [138] Introduction [1] The plaintiff Association has commenced this proceeding to challenge the validity of the Thames-Coromandel District Council’s Freedom Camping Bylaw 2011 (the Bylaw). The Freedom Camping Bylaw was purportedly made by the Council in reliance on powers given to local authorities by s 11 of the Freedom Camping Act 2011 (the Act). [2] The Association also challenges the validity of amendments that the Council made to the Freedom Camping Bylaw 2011 in March and December 2013. It is alleged that the Council acted unlawfully by not using the special consultative procedure set out in s 83 of the Local Government Act 2002 in making the amendments. [3] Challenges are also mounted in respect of clauses of the Council’s Public Places Bylaw 2004 (the Public Places Bylaw) and Parking Control Bylaw 2004 (the Parking Bylaw) which are also said to be illegal and invalid. It is claimed that these bylaws prohibit freedom camping in all public places in the Council’s district, with certain exceptions. It is also said that cumulatively, the provisions of all three bylaws constitute an unlawful restriction on the ability to engage in the activity of “freedom camping”, a term now defined by the Freedom Camping Act 2011. [4] Underpinning these arguments is the claim that the Bylaw represents an unlawful restriction on the right affirmed by s 18 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act) which provides that: Everyone lawfully in New Zealand has the right of freedom of movement and residence in New Zealand. [5] According to an affidavit sworn in support of the current application by Mr Bruce Lochore, who is the chief executive of the Association, at the time the proceeding was commenced, the Association had a membership of over 52,600. Those members pay an annual fee and receive benefits of membership such as access to a tailored group insurance scheme, discounts for products and services, invitations to rallies and special events and access to an online travel directory including GPS locations for holiday parks, camping grounds, and other amenities. According to Mr Lochore, members of the Association are typically retired couples who enjoy exploring New Zealand in motor caravans and who are committed to protecting the environment in accordance with a code of conduct. There could be no suggestion that the Association does not have standing to bring the present proceeding, and no issue about that was raised by the Council. [6] In the judgment that follows I will: (a) Refer to the relevant provisions in the Freedom Camping Act 2011. (b) Explain the key features of the Bylaw as originally made. (c) Explain the steps that were taken to amend the Bylaw in 2013. (d) Consider and reach conclusions on the lawfulness of the steps taken by the Council to amend the Bylaw in 2013. This step is necessary in order to establish the relevant form of the Bylaw for the purposes of the arguments directed to the Bylaw’s substantive invalidity. (e) Consider other Bylaws that the Council made prior to enactment of the Freedom Camping Act, which have implications for the lawfulness of freedom camping. [7] I will then proceed to consider whether the Bylaw is a valid exercise of the bylaw-making power conferred by the Act. The Freedom Camping Act 2011 [8] The Act does not contain a clear statement of purpose of the kind that often appears at the outset of recently enacted legislation. Section 3(1) states that the section provides an outline of the Act and “indicates its purpose and scope”, while not limiting or affecting “the application or interpretation of any of the individual provisions of the Act”. Subsection (2) of s 3 then states that the Act regulates freedom camping on land controlled or managed by local authorities and on land controlled or managed by the Department of Conservation under statutes including the Conservation Act 1987 and the Reserves Act 1977. [9] Section 3(3) provides that: … the powers of regulation under the Act do not allow for freedom camping to be prohibited on all land controlled or managed by a particular local authority or on all land controlled or managed by the Department. [10] Section 3(4) states that the Act does not regulate freedom camping on private land. Section 3(6) explains that Part 2 of the Act deals in two subparts with freedom camping on land controlled or managed by, respectively, local authorities, and the Department of Conservation. The subsection also provides: Freedom camping is permitted under this Part unless it is restricted or prohibited in accordance with the provisions of each subpart. [11] Section 5 defines what “freedom camp” means: Meaning of freedom camp (1) In this Act, freedom camp means to camp (other than at a camping ground) within 200 m of a motor vehicle accessible area or the mean low-water springs line of any sea or harbour, or on or within 200 m of a formed road or a Great Walks Track, using 1 or more of the following: (a) a tent or other temporary structure: (b) a caravan: (c) a car, campervan, housetruck, or other motor vehicle. (2) In this Act, freedom camping does not include the following activities: (a) temporary and short-term parking of a motor vehicle: (b) recreational activities commonly known as day-trip excursions: (c) resting or sleeping at the roadside in a caravan or motor vehicle to avoid driver fatigue. [12] This is followed by a definition of “local authority area” in s 6. Section 6(2) is only relevant to the area administered by the Auckland Council. Of relevance in the present case is s 6(1) which enacts: Meaning of local authority area (1) In this Act, local authority area— (a) means an area of land— (i) that is within the district or region of a local authority; and (ii) that is controlled or managed by the local authority under any enactment; and (b) includes any part of an area of land referred to in paragraph (a); but (c) does not include an area of land referred to in paragraph (a) or (b) that is permanently covered by water. [13] Part 2 subpart 1, ss 10 to 14 contain the detailed provisions that relate to freedom camping in local authority areas. [14] Section 10 provides that freedom camping is permitted in any local authority area unless it is restricted or prohibited in an area in accordance with a Bylaw made under s 11 of the Act, or under any other enactment. [15] Section 11 sets out provisions relating to the Councils’ bylaw making powers. The section provides: Freedom camping bylaws (1) A local authority may make bylaws— (a) defining the local authority areas in its district or region where freedom camping is restricted and the restrictions that apply to freedom camping in those areas: (b) defining the local authority areas in its district or region where freedom camping is prohibited. (2) A local authority may make a bylaw under subsection (1) only if it is satisfied that— (a) the bylaw is necessary for 1 or more of the following purposes: (i) to protect the area: (ii) to protect the health and safety of
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