15.3.4 Judicial review of the council’s decisions
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The High Court can undertake a judicial review to determine if a council decision is lawful.
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A court can review most formal council decisions (including those by elected members and council staff) and the process by which they were reached. Ordinarily, a power that is the subject of review proceedings will be one that has been given to the decision-maker by statute.
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Usually a person or group adversely affected by the decision brings a judicial review.
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The basic questions for judicial review are:
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Has the decision-maker acted within the scope of the power or discretion conferred?
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Has the decision-maker acted fairly?
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Has the decision-maker acted reasonably? Normally this question is confined to asking whether the decision-maker has acted in a way that no reasonable decision-maker could have acted.
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The most likely grounds for a review of a council decision are that, in making the decision in question, the council decision-maker:
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Failed to follow the process specified in legislation for making the decision.
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Did not act fairly because he/she failed to consult with persons or groups affected by or interested in the particular decision. In particular, if the council did not follow the consultation requirements outlined in the Local Government Act 2002.
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Defeated a legitimate expectation of a person with an interest in the decision (e.g. a promise to do something in a particular way).
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Did not act fairly because he/she failed to give effect to the principle of natural justice.
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Made up his/her mind before hearing or considering all relevant matters (i.e. predetermined the decision).
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Took into account irrelevant considerations, failed to take account of relevant considerations, made a mistake about the facts relevant to the decision, or made the decision for the wrong purpose.
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Could appear to an observer to have been influenced by a personal relationship, duty or consideration (i.e. the decision-maker had a conflict of interest or was biased).
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Made the decision after an invalid or unauthorised delegation.
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Acted for an improper purpose (not the purpose for which the power or discretion was conferred).
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Acted outside the scope of the power or discretion or misinterpreted the applicable law.
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Made a mistake about facts that were important to the decision.
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Did not actually make the decision, but instead rubber-stamped the decision of an adviser.
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If a claim for judicial review is successful, it is up to the Court to decide what, if any, remedy it will grant. Most often, the Court will set aside the decision, and direct the decision-maker to remake it. The Court may direct how this should be done, but will not direct the outcome of the decision. The Court might also make declarations about the way the decision was made (e.g. that something that should have been done was not done, or that some matter that was taken into account by the decision-maker was not relevant). In some cases, the Court may also award monetary relief, such as compensation for a breach of a fundamental right, or restitution where fees have been unlawfully charged.
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As part of the council’s model litigant commitment, the council will normally take a generous rather than technical approach to the disclosure of documents in judicial review proceedings. It is also expected to be candid in explaining its decision-making process to the court.
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Staff and elected members should be aware that information they prepare for internal purposes, including emails, may be released to opposing parties in litigation.