Council's Refusal to Sign Climate Declaration Successfully challenged in High Court

Topics covered in this article: RMA & Local Government, Sustainability & Climate Change

Mark Harding

Associates

Associate

Phone: +64 7 927 0574 
Email: mharding@clmlaw.co.nz

Bachelor of Law (Hons), Batchelor of Science

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Case Summary: Hauraki Coromandel Climate Action Incorporated v Thames Coromandel District Council [1]

In a recent High Court (Justice Palmer) case, Hauraki Coromandel Climate Action Incorporated v Thames Coromandel District Council, a Thames Coromandel District Council (Council) decision not to authorise the Mayor to sign a Local Government Leaders’ Climate Change Declaration was successfully challenged through judicial review proceedings.  The Court found that the decision was one of significance and that the Council in making its decision failed to follow its legal processes. This case is significant for public bodies making decisions in relation to climate change - we take a look at the case in a little more detail below.

Background

What was the Declaration?

The Local Government Leaders’ Climate Change Declaration (Declaration) is a three page long document authored and promoted by Local Government New Zealand, which declares “an urgent need for responsive leadership and a holistic approach to climate change”. The Declaration also sets out some high level non-specific commitments for councils to:

(a) develop and implement ambitious plans that reduce greenhouse gas emissions;
(b) work with communities to understand, prepare and respond to the physical impacts of climate change; and
(c) work with central government to deliver on national emission targets.

The Declaration also outlines seven guiding principles for decision making on climate change.  At the time of the hearing 67 out of 97 councils had signed the Declaration.

The Council’s Decision not to authorise signing

The Council in making its decision not to authorise the Mayor to sign the Declaration relied on a two page report from the Mayor with the stated purpose “for the Council to consider signing the Declaration”. The Council considered the Report as one of the last matters in an ordinary public meeting (ie not one specifically to consider the Report) where it voted not to authorise the Mayor to sign the Declaration due to concerns with it possibly creating binding legal obligations on the Council and uncertain financial implications (Decision).

Decision challenged

Hauraki Coromandel Climate Action Inc applied to the High Court for judicial review of the Council’s Decision on the grounds that the Decision was unreasonable and the process followed in making the Decision was unlawful. 

Court’s Judgment

Decision was reviewable

The Court found that the Decision was an exercise of statutory power and therefore reviewable.  The Court was satisfied that the Decision would directly affect the rights and duties of citizens and ratepayers. It also noted that the potential and likely effects of climate change, and the measures required to mitigate those effects, are of the highest public importance. Finally it noted that there is strong public interest in decision making by the Council on such issues being subject to judicial review, and that given the nature, effects and significance of the Decision it was reviewable.

Decision was not unreasonable

The Court found that the Decision was not unreasonable. The reasons for the Council‘s  Decision not to authorise signing of the Declaration were  due to concerns with it being potentially legally binding and the commitments in it having unknown financial consequences There was a logical connection between the evidence relied on in the Report, and the Decision reviewed.  The Court noted that if the reason not to approve signing had been based on misinformation or a blanket denial of climate change then it may have well been unreasonable.

Council’s decision-making process was unlawful

The Court noted that whilst uncertain legal implications and financial consequences were reasons for the Council’s Decision on the basis of the information it had before it, its obligations under the Local Government Act 2002 (LGA) and the Council’s own Significance and Engagement Policy (Policy) required it to go further. The Court held that the Council’s climate change strategy, and a proposed decision engaging with climate issues at a strategic level, must be a significant issue in terms of the LGA and its Policy. Such decisions are significant questions bearing directly on the social, economic, environmental and cultural well being of the district in the present and into the future, which is the purpose of local government as set out in s10 LGA.

Specifically, sections 76-79 LGA and the Council’s Policy required the Council to assess the degree of significance of the issues, and in light of that to:

(a) Identify all reasonably practicable options and assess them, taking into account all relevant considerations; and

(b) Consider the views and preferences of those likely to be affected by or have an interest in the issues.

While the Council had a discretion as to how to satisfy its compliance with the LGA, it was required to consider how to comply. There was no evidence that the Council had made a judgement under s79 LGA, nor did it consider how to comply with ss 77 and 78 in proportion to the significance of the matters affected by the Decision in accordance with its Policy, or take account of all the mandatory considerations in s79.

The Court quashed the Decision and directed the Council to reconsider the matter in light of the requirements of the LGA and its Policy.

Judicial commentary of significance: Signing Declaration could create enforceable Legitimate Expectation

In making his decision, Justice Palmer made some interesting comments in relation to climate change about legitimate expectations arising from decisions public bodies make and their ability to be enforced, in particular:

(a) Administrative law envisages the possibility that a legitimate expectation can be legally enforced against a public decision maker in some circumstances;

(b) To do so a claimant must establish the nature of the commitment made by the public authority, whether their reliance on it is legitimate, and identify what remedy is sought; 

(c) Whilst this is easier to establish when the legitimate expectation is about process, there are circumstances when a legitimate expectation about substance may be enforceable;

(d) Despite acknowledging that an expectation of substance would be difficult to enforce and that any case would turn on its facts, the Declaration could potentially be the basis for a legally enforceable legitimate expectation;

(e) A hypothetical example provided of a potentially enforceable climate change expectation was where a council endorsed and signed the Declaration but then refused to consider at all any action plan to reduce greenhouse gas emissions, or to work with the community to understand the physical impacts of climate change.

Comment

The High Court’s decision is important, as it demonstrates that any decisions public bodies make in relation to climate change are likely to be considered significant and can expect heightened judicial scrutiny. Further:

(a) It is no longer acceptable for a public body to simply ignore climate change, or to make decisions on climate matters on the basis of misinformation or a blanket denial of climate change.  Such decisions are likely to be challengeable by judicial review on the grounds of unreasonableness;

(b) Any decisions a council makes which engage with climate issues at a strategic level are likely to be considered a significant issue in terms of the LGA and its Significance and Engagement Policy and therefore councils will need to follow their LGA processes very carefully in undertaking such decisions;

(c) Public bodies signing up to declarations, or commitments in relation to climate change, could in some cases create an enforceable legitimate expectation.  Care should be taken when signing even high-level aspirational documents, to ensure councils are prepared to take steps towards achievement of the stated outcomes. 

If you have any questions about this case or the issues it raises, do not hesitate to contact a member of our climate change and sustainability team.

 

 

24 February 2021

 

 

[1] [2020] NZHC 3228.