A judicial review is not about whether a decision was “good” or “bad” in policy terms. It is a legal mechanism by which the courts ensure public bodies act within their legal authority, follow fair procedures and genuinely apply their minds to the statutes that govern their powers.
The grounds on which a case may be reviewed include illegality (acting outside legal powers), procedural unfairness (failure to observe natural justice) and unreasonableness (so extreme that no reasonable authority could reach it). Errors of law, such as applying the wrong test, ignoring relevant considerations or predetermining the outcome, are central.
The Judicial Review Procedure Act 2016 sets out the process, but the principles go back to the old “prerogative writs” of common law. The court’s task is supervisory: a decision may be quashed or reconsideration ordered but it does not substitute its own judgment for the outcome.
A roading project at Auckland’s Bucklands Beach shows the law in action. In 2021 the Howick Local Board allocated funding for traffic-calming measures. Auckland Transport (AT) refined designs after consultation and its traffic control committee adopted recommendations for crossings and speed humps, doing so by affixing electronic signatures to standard-form reports that included pre-drafted resolutions.
This came to the attention of local resident and law student Sean O’Loughlin who instituted judicial review proceedings.
Under section 334(1) of the Local Government Act, AT could construct road facilities for safety or traffic control only if it formed the opinion they would not “unduly impede” traffic. The reports contained boilerplate assertions that this opinion was held but no actual evidence that the committee considered the issue.
O’Loughlin argued the decision was predetermined and that consultation was improperly limited to a single ratepayers’ association.
Justice David Johnstone’s 26-page judgment sifted the evidence. On the issue of consultation, he rejected the claim AT and the local board were bound to wider consultation. On predetermination, however, he found the committee had failed to form the statutory opinion required by s 334(1).
The use of pre-drafted resolutions and electronic signatures meant there was no genuine consideration of whether the measures unduly impeded traffic. Assertions in the reports could not substitute for actual reasoning. In effect, AT acted without lawful authority.
The remedy was not immediate removal of the works. Instead, Justice Johnstone directed AT to reconsider the matter properly, with real engagement with the statutory test. If upon genuine consideration AT concluded the works unduly impeded traffic, it would then be obliged to remove them.
It’s a remarkable case. First, it shows the value of judicial review in holding public authorities to account – even over seemingly modest local projects. Second, it illustrates how predetermination can creep in where decision-making processes overly rely on templates and boilerplate resolutions. Third, it underscores the ability of individuals to ensure statutory safeguards are respected.
Public bodies often treat consultation as a procedural box-tick and decision-making as a matter of rubber-stamping staff recommendations. This case demonstrates the legal risk of such an approach. Decision-makers must actively grapple with the statutory criteria that govern their powers knowing courts will intervene where processes reveal those criteria have not been genuinely addressed.
Judicial review is not about second-guessing policy merits but insisting decision-makers obey the law. Transparency, legality and procedural rigour are not optional for public authorities – they underpin democratic accountability.
David Harvey is a retired district court judge.
