Local councils make decisions that affect individuals, property owners and businesses every day.
These decisions can concern matters such as licences and permits, bylaws, development, regulatory action, public consultation, rates, infrastructure, council services and the use of public land.
Councils and other local authorities have significant decision-making powers, but those powers are not unlimited. They must exercise their powers lawfully, fairly and in accordance with the legislation that gives them those powers.
Where a person or business believes that a council has made a decision unlawfully or through an unfair process, one possible remedy is judicial review.
What is judicial review?
Judicial review is a process through which the High Court can examine whether a decision made by a public authority was made lawfully.
In New Zealand, judicial review proceedings are governed principally by the Judicial Review Procedure Act 2016, together with legal principles developed through decisions of the courts.
Judicial review is different from an ordinary appeal.
An appeal will often involve asking a court or tribunal to reconsider whether the original decision was correct. Judicial review is generally more concerned with how the decision was made, whether the correct legal principles were applied, and whether the decision-maker acted within its lawful powers.
The High Court will not normally substitute its own view simply because another decision might have been preferable. Instead, the Court considers whether the council or other public authority exercised its powers according to law.
What council decisions can be reviewed?
A wide range of local government decisions may potentially be subject to judicial review.
These can include decisions involving licences, permits and approvals, council bylaws, enforcement action, consultation processes, property and land, regulatory requirements, decisions affecting businesses or individuals, and decisions made by council committees or delegated decision-makers.
Judicial review may also be available where a council has refused or failed to exercise a statutory power.
Whether a particular decision can be challenged will depend upon the nature of the decision, the legislation under which it was made and the circumstances surrounding it.
When can a council decision be challenged?
There is no single test that applies to every judicial review case. However, there are several common grounds upon which council decisions may be challenged.
The council acted outside its legal powers
A council can only exercise powers given to it by law.
If a council acts beyond those powers, misunderstands the scope of its statutory authority or uses a power for a purpose for which it was not intended, its decision may potentially be unlawful.
This is sometimes described by lawyers as acting “ultra vires”, meaning outside the decision-maker’s lawful powers.
The council followed an unfair process
Fair procedure is an important part of public decision-making.
Depending on the circumstances, a person substantially affected by a proposed decision may be entitled to a reasonable opportunity to provide information, make submissions or respond to matters that could adversely affect them.
A judicial review may therefore arise where a person was not given a fair opportunity to be heard, relevant submissions were not properly considered, or a decision was reached through a materially unfair process.
The precise requirements of fairness will depend upon the legislation involved and the particular circumstances.
Relevant matters were not considered
When exercising a statutory power, a council may be required to consider particular matters.
A decision may potentially be challenged where the council failed to take account of something it was legally required to consider.
Similarly, problems may arise where the council relies upon considerations that the law does not permit it to take into account.
Bias or predetermination
Public decisions should be made fairly and with an open mind.
Questions can arise where there is evidence suggesting that a decision had effectively been made before the proper decision-making process occurred, or where a decision-maker has a conflict of interest or other circumstances giving rise to a legally significant concern about bias.
Simply disagreeing with a council decision does not establish bias or predetermination. There must be a proper factual and legal basis for such an allegation.
Unreasonable decisions
In some circumstances, a council decision may be challenged because it is legally unreasonable.
This does not mean that every decision that appears harsh, inconvenient or mistaken will be unlawful. Councils and other public authorities are often given considerable discretion, and reasonable decision-makers can sometimes reach different conclusions on the same facts.
The issue for judicial review is whether the decision has crossed the legal threshold at which intervention by the Court is justified.
What can the High Court do?
The High Court has a range of remedies available where a judicial review claim succeeds.
Depending on the circumstances, the Court may set aside an unlawful decision, make a declaration concerning the legal position, grant an injunction or make other appropriate orders.
The Court can also direct the council or public authority to reconsider the matter.
This illustrates an important feature of judicial review. The Court will not necessarily make the council’s decision for it. Instead, the original decision may be set aside and the matter returned to the council to be determined again, this time in accordance with the law.
Can the Court stop a council decision before the case is heard?
Sometimes a council may be preparing to implement a decision before a judicial review proceeding can be finally determined.
In appropriate cases, an applicant may seek interim relief from the High Court. This can include orders temporarily preventing particular action from being taken while the Court considers the judicial review proceeding.
Interim relief can be particularly important where implementation of the decision could have consequences that would be difficult to reverse.
Where a council decision is about to be implemented, obtaining legal advice promptly can therefore be important.
Judicial review is not simply a second chance to argue the case
One of the most important things to understand about judicial review is that being unhappy with a council decision is not, by itself, enough.
A person may strongly disagree with a decision and believe the council reached the wrong conclusion. That does not necessarily mean the decision is unlawful.
The focus should instead be on identifying whether there was a legal problem with the decision or the process through which it was made.
This may require examining the legislation under which the council acted, council reports and correspondence, meeting papers, consultation material, submissions, delegated authority, the information available to the decision-maker and any reasons given for the decision.
Are there alternatives to judicial review?
Court proceedings are not always the first or most appropriate option.
Depending on the particular decision, there may be a statutory right of objection, reconsideration or appeal. It may also be possible to ask the council to reconsider its decision, use a council complaints process, make a complaint to the Ombudsman or pursue another available statutory remedy.
The existence of another remedy does not necessarily prevent judicial review proceedings, but it can be relevant when deciding whether judicial review is appropriate.
It is therefore important to identify all available options before deciding whether High Court proceedings should be commenced.
Acting promptly can be important
Anyone considering challenging a council decision should obtain advice promptly.
Delay can create practical and legal difficulties. A council may begin implementing its decision, contracts may be entered into, money may be spent, development may commence, or third parties may acquire interests based upon the decision.
Delay may also affect the Court’s willingness to grant discretionary relief.
Obtaining advice early can help determine whether judicial review is realistically available and whether urgent steps, including an application for interim relief, should be considered.
What information should you keep?
If you are concerned about a council decision, it is important to retain relevant documents and communications.
These may include the council’s decision, correspondence, emails, reports, meeting papers, consultation documents, submissions, notices, photographs and any written reasons provided for the decision.
It can also be helpful to prepare a clear timeline recording what happened, when communications occurred, what information was provided to the council and when the final decision was made.
The legality of a decision can sometimes depend on relatively specific details about what information was before the decision-maker and what procedure was followed.
Getting legal advice about a council decision
Judicial review is an important safeguard against the unlawful exercise of public power, but it is also a specialised area of law.
Before commencing proceedings, it is important to identify precisely what decision is being challenged, the legal power under which the decision was made, the alleged error in the decision-making process and the remedy being sought.
A barrister can review the decision and surrounding documents, advise whether there are arguable grounds for judicial review, consider whether alternative remedies are available and, where appropriate, represent an applicant in proceedings before the High Court.
If you have been adversely affected by a decision made by a council or other local authority and are concerned that the decision may have been unlawful, procedurally unfair or made outside the authority’s legal powers, obtaining advice at an early stage can help clarify the options available.
This article provides general information about New Zealand law and is not legal advice. Whether judicial review is available will depend on the particular decision, the applicable legislation and the individual circumstances of the case.