Council sent back to the drawing board on climate change
Council sent back to the drawing board on climate change
Thursday 18 March, 2021
Over sixty mayors and regional council chairs have signed the Local Government Leaders’ Climate Change Declaration. Hauraki Coromandel Climate Action Incorporated was disappointed that the Mayor of Thames-Coromandel District Council (TCDC) did not sign it, and took the council to the High Court in judicial review.
The High Court decided that the council’s decision not to approve of the Mayor signing the Declaration was not unreasonable. However, TCDC failed to comply with the analysis and consultation requirements of the Local Government Act 2002 and its own Significance and Engagement Policy so Justice Palmer quashed the decision and told the council to start again.
TCDC filed no evidence about its decision-making process, including the considerations it took into account. The court cautioned that this is a risk for a decision-maker facing judicial review, as the court may then draw adverse inferences about the decision-making process.
Justice Palmer reminded councils that in the law of judicial review, groups can have, in some circumstances, “legitimate expectations” that they can legally enforce against a public decision-maker. He said a council which endorsed its Mayor signing the Declaration but then failed to take any steps towards developing action plans or working with its community to understand the impacts of climate change could potentially be found to have breached a legitimate expectation. (He did note that real world cases tend to have more nuance and uncertainty).
The court held that the effects of climate change and the required mitigation measures are of the highest public importance, and therefore the council’s decision was reviewable. Further, decisions about climate change deserve the same heightened scrutiny as cases involving fundamental human rights.
TCDC’s decision was reasonable given the possibility of legitimate expectations and the possible financial implications of approving the Mayor to sign the Declaration. If the decision had been based on misinformation or blanket climate change denial, then it would likely have been unreasonable.
However, the decision was a significant one in terms of the LGA and TCDC’s Significance and Engagement Policy. (In fact, Justice Palmer took the view that the decision was more significant than Bay of Plenty Regional Council’s decision to move its head office from Whaktāne to Tauranga, which went to the Court of Appeal in 2010). In particular, there was no evidence that TCDC had identified reasonably practicable options and assessed their advantages and disadvantages, nor that it had considered how it would give consideration to the views of affected people.
Justice Palmer declared that TCDC’s decision was unlawful and directed it to make a new decision after having followed the decision-making process required by the LGA and its S&E Policy. TCDC has directed staff to prepare a staff report for consideration at its April meeting.
This case highlights the value of written records of the decision-making process, particularly for contentious decisions. It is more difficult to record the decision-making process of councillors than of council staff. Writers of staff reports can assist elected members by drafting resolutions which summarise the anticipated reasons for proposed decisions, and by writing clear and well-reasoned staff reports which address the decision-making considerations and obligations (and by obtaining legal review of draft staff reports in appropriate cases). Meeting minutes and staff reports can be released (in redacted form if there are LGOIMA grounds for doing so).
