Consultation is not a "referendum"

Thursday 3 October, 2019

The High Court has confirmed that the Local Government Act 2002 (”LGA”) does not give a participant in a particular process the right to have input into a Council’s consultation material, nor does it oblige a Council to accept the preference of the majority of submitters in respect of a LGA process. The Court has also confirmed that it will consider the entire community engagement process in deciding whether there has been meaningful consultation under the LGA.

The Island Bay Residents’ Association took Wellington City Council to Court over decision on the design of a cycleway through Island Bay. The Association said that the Council had breached its consultation and decision-making obligations.

All the options had been subject to engineering and safety assessment, but the Association criticised the Council’s decision not to submit the concept designs to technical or peer review before being consulted on. The Court said that there was no obligation in the LGA requiring a concept design to undergo technical or peer review prior to consultation. The purpose of the consultation was to enable submitters to select their preferred design, not to make submissions on technical engineering or safety matters.

The Court rejected the Association’s argument that the Council had not undertaken meaningful consultation because it had not involved the Association in determining the content of the consultation material, including design options and consultation timeframe. Nothing in the LGA gives one participant in a community consultation exercise the right to have input into the preparation of Council’s consultation material.

The Association also complained that the 14-day consultation period was too short, but the Council had started the community engagement process 14 months earlier. The unusually high number of submissions showed that the consultation was meaningful. In that context, the 14-day consultation period was not unreasonably short.

The Association complained that the option ultimately adopted had not been consulted on and was materially different from anything that had been consulted on. The Court decided that the design chosen was a hybrid of two options that had been consulted on and was not materially different so further consultation was not required.

Breach of procedural legitimate expectation

The Association criticised the Council for changing the designs from those originally consulted on, and for not including the Association’s preferred design option. The Association said this breached its legitimate expectation that the Council would consult on the original designs and include the Association’s preferred design option. The Council’s evidence was that the original designs had to be changed because they no longer met safety and best practice guidelines. The Court’s accepted the Council’s argument that it would have been irresponsible to put forward a status quo option that it knew could not be implemented because it did not comply with safety guidelines.  The Council had included the Association’s preferred design on the website, though not in the written materials. The Court repeated that there was nothing in the LGA entitling a submitter to dictate to Council the substantive content of consultation options.

Meaningful regard

The Association raised a number of factors to which it alleged the Council had not had “meaningful” regard, in particular the Council’s choice of design because it did not reflect the preference of the majority of submitters. The Court said this was “misguided”. S 78(1) requires the Council to give due consideration to the preferences expressed, the majority’s preference is just one factor among many: consultation is not a referendum. The Court repeated the principle that the Court should not substitute its own decision for the decision of the Council.

This case is a timely reminder of the importance of meaningful consultation and confirms that Councils do not have to comply with the wishes of the majority.

For assistance with questions relating to this article, please contact Kate Cornege or Megan Crocket.