Case Brief: New Zealand Motor Caravan Association Incorporated v Marlborough District Council [2021] NZHC 3157

April 7, 2022
Summary

The New Zealand Motor Caravan Association (“NZMA”) successfully judicially reviewed the introduction of a blanket ban on freedom camping across the Marlborough district by the Marlborough District Council (“MDC”).

Background

In October 2019, the MDC engaged a consultant to undertake a review of freedom camping in the district. Their subsequent report documented the environmental cost and impacts of irresponsible campers, in particular their disposal of human waste and litter. The report also noted social costs, including the blocking of access and general annoyance to members of local communities.

In response to these issues, the MDC commenced the 2020 MDC Responsible Camping Control Bylaw (“2020 bylaw”). The 2020 bylaw introduced a blanket prohibition on freedom camping across the Marlborough district unless specifically permitted on a listed site. This effectively banned freedom camping by default.

NZMCA represents the interests of private motorhome and caravan users. A vast majority of its members own registered vehicles with self-contained waste disposal. NZMCA applied for judicial review, seeking to set aside the 2020 bylaw.

The Case

NZMCA pleaded three causes of action. The first was MDC had failed to adequately consult the public on the new provision. The second was MDC made an error of law, as the blanket prohibition was neither the most appropriate nor proportionate measure as required under Freedom Camping Act. By extension, MDC thirdly argued the response was disproportionate and therefore unreasonable.

Consultation

The blanket prohibition was added to the 2020 bylaw after public consultation was closed, and was a significant change to the statement of proposal originally consulted on. Grice J found that the MDC did not exercise its discretion as to whether it should re-consult on the 2020 Bylaw responsible for the blanket prohibition. This failure to re-consult was an error of law.

Freedom Camping Act

The Freedom Camping Act requires that a bylaw made by a local authority must be “the most appropriate and proportionate way of addressing the perceived problem in relation to that area.” The bylaw must also not have the effect of prohibiting freedom camping in all the local authority areas in the district.

Grice J was unsatisfied a blanket prohibition was the most appropriate or proportionate way of addressing the freedom camping issue in the district. It also did not appear the MDC had considered all areas of the district, as required under the Freedom Camping Act. This amounted to an error of law.

The Court concluded in light of these findings the 2020 bylaw was unreasonable, as it was a disproportionate response and could not be justified.

Result

The Bylaws Act 2010 allows the Court to sever or amend the offending part of the bylaw rather than quashing the decision.

After discussion with counsel, Grice J determined the most appropriate and balanced outcome would be to remove the clause responsible for the ban and leave the remainder of the 2020 Bylaw in place. This decision meant freedom camping was again permitted in the Marlborough region. The MDC has since undertaken its own review of the Bylaw, and provided an opportunity for public submissions and consultation.

If you would like to understand more about challenging a local authority decision, please contact Director Brigitte Morten

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