Environmental / Resource Management

Has the Territorial Authority Special Consultation Process Just Become a Whole Lot More Stringent?

In Gwynn v Napier City Council [2018] NZHC 1943 Dobson J held that the Napier City Council (Council) made errors in the statutory consultation process in deciding whether to adopt a local Easter Sunday shop trading policy, despite undertaking a relatively thorough process. The Court held two grounds for judicial review were made out:

  • While the minimum statutory requirements for the special consultative process (SCP) were met, the decision did not discharge Council’s other consultation obligations set out in the Local Government Act 2002 (LGA);

  • The Council failed to consider a mandatory relevant factor, namely, consideration of the views of parties affected by the decision. 

Background

The Shop Trading Hours Act 1990 (STHA) removed the historical prohibition on trading on Sundays, with the exception of Christmas Day, Good Friday, Easter, and ANZAC Day until 1:00pm. In 2016 the Shop Trading Hours Amendment Act 2016 (Amendment Act) introduced a new Part 2 into the STHA requiring a territorial authority to use the SCP- defined in the LGA – in deciding whether to adopt a local Easter Sunday shop trading policy. Included within the Amendment Act were provisions which confirmed employees’ right to refuse to work on Easter Sunday and obliged employers to give eight weeks written notice of the employer’s request for an employee to work on Easter Sunday.

Part 6 of the LGA sets out the principles of consultation and the procedures which apply in conducting consultation. The SCP is a formal process, provided for in s 83 of the LGA. The parties were at odds over whether the general principles of consultation contained in s 82 of the LGA remain applicable when a local authority must use the SCP.  

The Council consultation process

Before embarking on the SCP for the Easter Sunday trading policy, the Council took various informal soundings. It engaged with retail associations, and with the wider community and advertised on its website, and on social media. The reporting back was in favour of the policy and Council resolved that the draft policy allowing Sunday trading should be publicly notified through SCP. Public notice was published in local papers. The Council issued a media release, sent emails to business associations, community organisations, and the New Zealand Council of Trade Unions’ head office, as well as to First Union and individuals within the Christian community.

Submissions on the proposal were split evenly and included a submission of opposition by Dr Gwynn, who protested the opportunity for consultation was inadequate because the period leading up to and including Christmas was exceptionally busy for the clergy and committed Christians. Mr Gwynn later found out First Union representatives had no knowledge of the consultation. Despite this, the Council voted for the proposal.

Moderate intensity of judicial review appropriate

The Court considered a moderate level of scrutiny was appropriate, noting a factor against an intensive level in the proceeding was that the structure provided by the LGA leaves the detail of the decision-making process to local authorities.

Input must be sought and encouraged from parties reasonably identified as having an interest

The Applicant argued that the process adopted by the Council was in breach of the Council’s consultation principles in ss 14, 78 and 82 of the LGA. Specifically, that the Council failed to make itself aware of and have regard to the views and preferences of persons likely to be affected by, or have an interest in, the making of a policy on Easter Sunday trading. Arguably the Council ought to have recognised the local Christian Community and First Union as persons whose views ought to be sought and encouraged. Conversely, the Council argued SCP represents a more thorough consultation process and therefore the Council did not need to apply the broader consultation principles.

Dobson J found that the principles of consultation specified in the LGA are always applicable, including when a local authority undertakes a SCP. Furthermore, the Court held the Council’s consultation process was not sufficient to discharge the consultation obligations required under s82(1) of the LGA. While a number of individuals within the Christian community made submissions and the statutory minimums of the SCP were met, the majority of the Christian community and trade union representatives remained ignorant of the submission process. The Court held the decision was made without encouraging any input from those reasonably identified as being affected by, or having an interest in, the outcome. Furthermore, the Court held declining the request of Dr Gwynn for an extended submission period due to the time of year was the antithesis of encouraging participation. 

The ostensible reflection of views is not enough, it is mandatory for territorial authorities to encourage and obtain information

The Court found that it was mandatory for the Council to encourage participation by the Christian Community and employees’ representatives, and that the Council did not give the requisite encouragement. Although the Council discharged its obligations to provide notice to the Christian community and employees under the SCP, its failure to encourage and obtain the views of those parties meant its decision was made with insufficient information on those views. The Council was on notice that at least one of those groups wished to make submissions but had not been able to, but nevertheless proceeded to make the decision without regard to a relevant consideration.

Different treatment does not amount to irrationality

The Applicant argued that it was irrational for Council to undertake pre-consultation and then ongoing dialogue with retailers and their representatives, when no equivalent canvassing was done with Christian Groups and union representatives. Central to this argument is the apparent unfairness of the Council in favouring retailers who would be advantaged by the policy permitting Easter Sunday trading, and ignoring the readily identifiable interests of those who would be opposed to it. Dobson J was not satisfied that the different treatment amounted to irrationality.

Council's desired timeline does not amount to an irrelevant consideration

The Court rejected the Applicant’s argument that Council’s decision on timing was influenced by a desire to provide a decision for Napier retailers in time for trading over Easter 2017 (a matter outside the LGA statutory considerations). The Court found the deadline accorded to the advice given by MBIE (the government agency promoting the Amendment Act) and that it was perceived as desirable to have the issue resolved.

Relief

The Court found that the interests of those who opposed the policy but were unable to participate in consultation outweighed the interests of retailers who had elected to open on the last two Easter Sundays. It declared the Council’s decision invalid and set it aside. 

You can read the full judgment from the Court here

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