By Linda O’Reilly, Tompkins Wake.
Since the Freedom Camping Act 2011 came into law, numerous local authorities have tried and failed to introduce fully satisfactory bylaws regulating camping on land they control or manage.
No one, it seems, is ever happy with the content of bylaws made under section 11 of that Act, which may define areas where freedom camping is restricted and the applicable restrictions, or where freedom camping is prohibited. There is an ongoing tension between those who for a variety of reasons seek the restriction or prohibition of freedom camping on otherwise available sites, and those who want to limit the restrictions and prohibitions applied by bylaw.
The second group is frequently spear-headed by the New Zealand Motor Caravan Association (NZMCA), which has not hesitated to challenge restrictions and prohibitions in bylaws made under the Act.
As a result, local authorities are sometimes caught in a vice between the demands of their communities to protect local sites and the threat or actuality of legal action by NZMCA challenging bylaw restrictions or prohibitions. This tension has not escaped the notice of central government, notwithstanding the reduction in the pressure on camp sites due to the closure of international borders during the pandemic and the resultant reduction in tourist numbers.
Accordingly, in April last year the Government released a discussion document, Supporting Sustainable Freedom … It attracted 5136 submissions, of which approximately 60 percent agreed that vehicle-based freedom camping created issues in the community, including staying in uncertified vehicles, litter, waste and overcrowding.
On 30 November 2021, having taken account of these submissions, the Minister of Tourism, Stuart Nash, announced the policy changes agreed by the Government, which are to be given effect to by new legislation to be introduced early this year.
Those key changes
- Requiring vehicle-based freedom campers to use a certified self-contained vehicle when staying on council land (unless the site has been designated as suitable for non-self-contained vehicles).
- Providing a regulated system for certification and a central registry for self-contained vehicles.
- Vehicles will be required to have a fixed toilet to be registered.
- Strengthening the infringement system.
- Extending the Freedom Camping Act to include land managed by the NZTA (state highways and the LINZ).
It is unclear whether the proposed legislation will resolve the issues associated with the Act, and no doubt there will continue to be vigorous debate about the areas where campers in tents or non-self-contained vehicles are permitted to camp. In the meantime, the Act has continued to provide fodder for the courts.
The most recent of these cases is NZMCA v Marlborough District Council [2021] NZHC 3157 where the High Court had to consider a challenge to the council’s reviewed Responsible Camping Control Bylaw.
The council followed the statutory consultation process based on a statement of proposal that included a permissive default clause allowing freedom camping throughout the district in vehicles with self-contained waste disposal, except where specifically prohibited. After hearing submissions, and without further consultation, the council removed the permissive default clause and inserted a default blanket prohibition on freedom camping across the district.
The NZMCA successfully challenged the resulting bylaw on three grounds. The first applied to the failure of the council to consult further following submissions when it proposed to reverse the default position.
The court said this was a significant change to the statement of proposal that had been consulted on and that the council had failed to turn its mind, as it ought to have done, to the issue of whether it should reconsult.
In addition, the court was unable to conclude on the evidence that the council had satisfied itself that the blanket default prohibition clause in the bylaw was the most appropriate and proportionate way of addressing freedom camping issues in the district as required by the Act. As a result of that finding, the court also concluded that the bylaw was unreasonable in terms of the Bylaws Act 1910.
The court set aside the decision leading to the adoption of the bylaw and made an order preserving the position as it was under the previous bylaw with an update as to sites in terms of those listed as permitted.
The council has commenced, of its own volition, a process of review of its freedom camping bylaw – a ‘back to the drawing board’ exercise that may, or may not, be overtaken by the proposed amending legislation.
It is to be hoped that the Government’s initiative will have a calming effect on this fraught area, where good intentions seem continually to be overtaken by the difficulties of effective implementation.